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Seinfeld’s Elaine is Anti-IP
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Yes, and she’s using her anti-IP stance to destroy a businessman. Edifying, isn’t it.
Well, I can make a hamburger just like the one at McDonald’s, and they’re still in business.
Yes, and you’re using a fictional work loosely related to the point to push your pro-IP stance. You must be an Objectivist.
Actually, she’s motivated by revenge not a sense of freedom hence she is pro-I.P.
There is nothing wrong with destroying a business per se. But of course I know our interpretation of the circumstances differs. What I call competition you call theft.
That’s because what you call competition, in the instance of IP, Peter, is theft.
Classic Hubbard: What “a” interprets as “x”, “b” interprets as “y”, because “b” interprets as “y” what “a” interprets as “x”. Thanks, Hubbard.
Repeating chants does not make your imagination come true.
I don’t quite see how making his recipes for soup public would necessarily put him out of business. That always bothered me: By the end of that episode the chef was shutting his shop down and giving away all the inventory (i.e. the soup that was already made). Why anyone would automatically shut their successful business down (or why you believe he would be driven out of business) just because someone else could replicate their product is beyond me.
Obviously, someone would have to make the soup.
@Mark,
The guy was an asshole. And the only reason most people in the show tolerated his eccentric, assholish behavior was because it was the only way to get his soup. Now, to my knowledge, recipes aren’t covered by IP now anyway, but for the sake of analogy let’s say they were. He’d be relying upon unjust state protection from the consequences of his own anti-social behavior. In a truly free market, if his recipes were not secret but rather were made publicly available, this wouldn’t necessarily be the death of his business. Having a recipe doesn’t magically make you a good cook. He may still be able to make his own recipes better than most people. Many people may not want to make soup from scratch and prefer to buy it at a restaurant. Other restaurants could adopt his recipes, but not all will and in any case he can still compete with them. However, he would have to make more of an effort to please his customers not only with good product but also with good service – he’d have to be more polite and flexible – or he’d lose business. He could market his restaurant as the home of the original XXX soup. He could also develop some new recipes that he could try to keep secret, at least for a time; that’s innovation, something IP and other state interventions disincentivize.
some customers just get off on being treated with contempt (i can think of several waiters who satisfy this need). being loathsome may well service a niche market.
Rights depend on how pleasant of a person you are.
(Btw, the Soup Nazi was asserting trade secrets, not copyright or patent, so he knew and bore the risk of the secrets getting out, but whatever…)
“Rights depend on how pleasant of a person you are.”
Blatantly intentional misrepresentation. Of course this is untrue.
“(Btw, the Soup Nazi was asserting trade secrets, not copyright or patent, so he knew and bore the risk of the secrets getting out, but whatever…)”
Yes, I know.
As opposed to the correct representation that your argument assumes IP protection necessarily comes from the state, making it circular?
Silas, his argument assumes no such thing. You need to get your critiques in order.
Um, I think you’ll find it’s the lawyer here using a fictional work, a comedy to boot, to justify IP theft. That’s the point of this thread, isn’t it?
Ayn save us from the anarchists.
I think the point he was trying to make was: here’s an amusing Seinfeld clip somewhat related to IP. The headline wasn’t “Another Reason Why IP Doesn’t Work.” I appreciate much of Rand’s work but she was Paradoxical in many of her stances as well as her elitist attitude. Her best works were fiction, dealing with abstract analogies. -Shall she save “us” from Anarchists or commies? Maybe some popular Rand disciple can write a fictional story about it.
i don’t think rand believed in an afterlife, so your invocations fall on dead ears, so to speak.
Nice to have them admitting to their belief in her godhood, though.
Yes, it’s refreshing to see a Randist acknowledge the religious nature of his beliefs.
It would be a fallacy to claim that because the fictional character Elaine Benes was against IP in one episode of Seinfeld, IP is therefore unjust. If you read the post, it simply points out an aspect of this fictional character, leaving the reader to make of it what he may. Another fallacy would be to claim that because a particular actual person held that IP was just, that IP is therefore just.
Hallelujah!
(in case this is not as obvious as I planned, it was supposed to show the irony of an atheist addressing supernatural powers).
Re: Mark Hubbard,
You cannot lose to theft what cannot be possessed in a rivalrous and exclusive way, Mark.
If ideas can spawn in people’s minds, then there are no fences that can contain them, notwithstanding the artificial fences created by anti-property authoritarians.
I have no problem with a minarchy protecting his property right on this issue Geoffrey. That is one of the very few valid roles of the small state. The anarchist dogma on this issue is in every respect anathema to an individual’s freedom.
But that’s all I have to say on this issue. I was just popping onto the blog threads here after a long time away from them, to see if Kinsella was still peddling his ignoble theft, and he is. So I’m off.
“very few valid roles of the small state”: thin edge of the wedge.
life mirrors art:
http://blogs.findlaw.com/decided/2010/05/wife-wins-in-seinfeld-cookbook-lawsuit.html
I’m for intellectual property; what’s that? There’s another Mark Hubbard on here who’s against it? I will immediately sue for the rights to this screen name on the Mises.org site. Bah. There can only be one true Mark Hubbard. He stole my name.
Thank you 7.46pm. Here we have the domonstration that when identity theft, like IP theft, become the sanction of the second hander, human converse and commerce breakdown and become impossible, and thus so does freedom.
In your foolhardy, ill-thought out rush to be anti-State, don’t convince yourself you are therefore pro-freedom. You are not, and you cannot be, as you do not understand the basis, and importance, of property rights.
worship of the state must be pondered and circumscribed.
only one mark hubbard can do high dudgeon convincingly.
I’m not worshipping the state, for it is my servant. It protects me from the initiation of force and fraud, and so protects my freedom to do as I wish, to pursue my happiness, so long as I am not initiating force or fraud on any other.
That’s the target, albeit our modern Nanny States are a long way from it, and have, indeed, become the enemy of the individual. So yes, we’re long past the need of another revolution, but the aim of that is to get back to the rule of law, not the second hander poverty the anarchists would devolve us back to.
sounds like you’ve got some issues with your nanny to resolve.
http://pc.blogspot.com/2010/01/some-propositions-on-property-rights.html
I can’t be bothered with that site. The blogger is a Randroid with nothing but contempt for non-Randians. (Had to laugh at this one, though. “today’s “libertarian” attackers of intellectual property appear completely ignorant of the arguments and justification for individual rights in general” — this from someone who’s best arguments run to “it’s stealing! Rand says so!”. All the “arguments” in the article have been roundly trashed here, repeatedly. Someone’s not cognizant of the arguments and justification for individual rights, but it ain’t us)
so long as I am not initiating force or fraud on any other
Ah, there’s the rub.
Peter, it’s lazy to dismiss the well explicated argument on that thread simply by saying he’s a Randian. He’s a member of the New Zealand Libertarian party, as am I. The pro-IP argument put up there certainly satisfies me, and shows up the faults well of the arguments for theft that inform this site: this site bad mouths von Mises, it doesn’t honour him, in every thread such as this one.
And note on that thread how the pro-IP argument is devised around not just Ayn Rand, but von Mises, also, and the great George Reisman from this very institute: I’d love to see more of him in here, but it appears the Kinsella/Tucker anarcho-axis control this venue completely.
And it’s especially lazy to treat
as merely “I won’t read that site because the author is a Randian.” I suggest readint it again, because it says something different than that.
What argument is so convincing to you, Mark? Here are the “arguments” presented:
1) Rights are right
(no argument is presented as to which “rights” are right. The words used could apply to actual property rights, as recognized by libertarians, to IP “rights”, to your “rights” to your slaves, whatever — if someone calls it a “right”, it’s “right”!)
2) Property rights are the fundamental right.
(same)
3) Property is a relationship.
(no problem with this, except that, again, it’s assumed to apply to whatever the author wants it to apply to, for no particular reason)
4) Property must be created
(“When we create new wealth, we create new values. Those new values have an owner.” This is pure nonsense, and of course he won’t follow it to its logical conclusion, criminalizing any form competition with an existing entity as “theft of value”)
5) Mixing labour? Or rewarding good judgement.
(if there’s an argument being made here at all, it would allow the man who first discovered the American continent (I don’t mean Columbus…or Ericson…the first guy across the land-bridge: let’s call him “George”), to “identif[y] some portion of unowned land [i.e., the American continent] as being of potential value. Having made this judgment, George now has rightful jurisdiction over the property, so that others may not (rightfully) prevent him from exploring it for oil or minerals, or simply using it to build a museum or a private home.”)
6) Property creates new value
(this doesn’t help us to determine what is “property” and what isn’t)
[oh, it continues in this vein for quite a bit longer, but I give up here. A lot of assumption (see point 1), many bald assertions, a bit of "Kinsella sucks", etc., but no actual argument or evidence is ever presented AFAICT.]
For “[i.e., the American continent]” read the entire continent. (I’d edit the above, but the formatting gets trashed)
There’s only one Mark Hubbard. Anyone else using the name is guilty of identity theft. According to Google, the real Mark Hubbard is a photographer in Virginia. The one posting here is an identity thief. Don’t let him get away with it!
(Ironically, the one that posts here is apparently a “candidate” for a New Zealand political party who presently works…ready for this?…for the tax department!)
Oh dear, your comphrension, Peter, is no doubt indicative of your ability to understand this issue, or freedom. Which is not at all.
I work ‘against’ the tax department, or at least try to protect my clients from the ravishes of it.
Ah. Fair enough. I interpreted “my private sector job is to tell the hard pressed individuals of our dwindling productive sector, how much of their effort is to be taken from them” as meaning you tell them how much your boys are gonna take (in my defense, you can see how I might).
Peter, to cover your points, a) you’ve not answered to the arguments on that link at all, and b) the individual does not own the idea, but does own the tangible production of that idea (software, novel, etc), so your finding America retort is a straw man as usual. And that covers all your arguments given, as thin as they are.
a) you’ve not answered to the arguments on that link at all
Because there aren’t any arguments. Just assertions.
b) the individual does not own the idea, but does own the tangible production of that idea (software, novel, etc)
Yes. That’s what we IP-opposers believe. Are you coming around, now?
so your finding America retort is a straw man as usual.
It’s not a straw man. That’s what the “argument” on that link says. If it’s not what it means, why doesn’t it say what it means?
And in an episode that aired just this evening on TBS, she presents her pro-IP stance by getting angry at Mr. Lippman (her former boss at Pendant Publishing) for stealing her idea about opening up a muffin-top only store.
But he screwed it up, you are supposed to bake a whole muffin then throw away to bottom, not just bake muffin tops.
I’d join this discussion but I gotta P.
lol
There is a series of books and a website called “top secret recipes”. The chef visits famous restaurants (mostly popular chain restaurants), buys their food take-out, does a little sifting, sampling and testing, and comes up with clone recipes adapted for the home kitchen. He has done a few Soup Nazi recipes and they’re quite good. I couldn’t tell you if they’re identical to the real thing. He handles IP issues by titling each recipe like so – “Top Secret Recipes Interpretation of McDonalds ™ Big Mac ™” and by acknowledging the trademark owners in the cookbook appendices.
The recipes are good, the steps are very clearly explained for inexperienced cooks, and many helpful tips and tricks are included. And for anyone who would like to protect the restaurants’ IP by shutting the guy down … don’t be an idiot! He’s giving the restaurants a huge amount of publicity by generating interest in them among people who are intrigued by the recipes. In the last 2 months since buying a couple of these books I’ve gone to 4 different chain restaurants which I’ve never visited before. I wanted to try their dishes to see how they compared to my home versions. In fact it would pay a restaurant to make sure he got faithful copies of the recipes, and I wouldn’t be surprised if he gets help from official channels (but on the Q.T. in order not to affect the mystique of either the Top Secret chef or the restaurants). A few restaurants might not be happy to have their recipes published when it turns out that their “20 different herbs and spices” seasoning is nothing but salt, pepper and MSG. But that’s their problem!
Peter: “4) Property must be created
(“When we create new wealth, we create new values. Those new values have an owner.” This is pure nonsense, and of course he won’t follow it to its logical conclusion, criminalizing any form competition with an existing entity as “theft of value”)
”
Perfect comment. They basically view value as a substance, an objective thing, that you own. They are crankish on economics, basically. Almost Marxian.
As opposed to the cranks that can only wrap their minds around rights in concrete “stuff” but nothing more abstract, like a basic rental contract.
But Silas, the questions arising with rights to non-rival things are numerous, without IP proponents, including you, providing any sort of explanation to how they should be resolved. Inability to determine boundaries absent change. Causality extending to infinity. Similarity being subjective. It is not the problem of not being able to consider rights in non-rival things. Its the full consequences of that step which are troublesome. If IP proponents’ theories were implemented consistently, the consequences would be reaching much farther than what you see now.
From: http://pc.blogspot.com/search/label/Intellectual%20Property
Quote:
This is correct, but in my opinion not argued convincingly. I complained several times about Stephan using the words scarcity and rivalry interchangeably. It confuses people to look at some aspects of the good and ignore others, more relevant ones. It’s not because there is so many of them that assigning them rights is problematic. It is because they lack important features which are available in rival goods. Attempting to treat them as property forces people to use metaphors. Well, that’s not exact. They are metaphors. They are not only the outcome of human imagination, they are the human imagination itself.
The only reason why it is possible to conclude IP infringement is to observe rival goods that are causally related to the non-rival good that is “property”. The only way to implement exclusion of non-rival goods is to implement exclusion of rival goods that are causally related to the non-rival good that is “property”. In a hypothetical world with no rival goods, there is no way to either conclude trespass or implement exclusion. It is not that implementing property in such a world is somehow undesirable or unnecessary, it is impossible.
So, what is the fundamental function of property rights?
I am sorry but this completely meaningless (I can find no meaning in this), as well as inapplicable to IP, since IP does not grant rights to use or trade, it only grants the right to exclude.
This is a very nice example of what I’m talking about. It’s not because there is “more than enough” of them that causes problems. It is because they are not consumed when used.
Again, not the issue. The issue is that if you use a rival good for one purpose, it is unavailable for another purpose. The options you face with their usage are mutually exclusive. That forces you to evaluate the options and subsequently choose. There is no such thing with non-rival goods, all options can be chosen independently of each other. There is no reason, or a method, to economise them.
The only reason why economics exists is because one needs to make choices. If there is no choice to be made, there is no economics.
On an unrelated note, essentially, IP “theory” is a religion. It depends on the belief that metaphors are real.
I complained several times about Stephan using the words scarcity and rivalry interchangeably.
In the technical sense that Kinsella uses they are interchangeable, but I agree that the use of the former rather than the latter leads to confusion. (As might your misuse of “rival” when you mean “rivalrous”, though)
Peter, you make several great and subtle points, and quite often, in your posts. Including here–re metaphors and religion etc.
“I complained several times about Stephan using the words scarcity and rivalry interchangeably. It confuses people to look at some aspects of the good and ignore others, more relevant ones. It’s not because there is so many of them that assigning them rights is problematic. It is because they lack important features which are available in rival goods. Attempting to treat them as property forces people to use metaphors. Well, that’s not exact. They are metaphors. They are not only the outcome of human imagination, they are the human imagination itself.”
I do not agree that “scarcity” is any more confusing than rivalrousness. If we used rivalrous/non-rivalrous it would confuse people too. I think people know full well what we mean by scarcity and that we are using it in a technical economic sense, and they simply equivocate. (I discussed a bit of this previously in Owning Thoughts and Labor http://blog.mises.org/6000/owning-thoughts-and-labor/ ).
I was once concerned about this too and asked HOppe what he thought. His view, paraphrasing, was that “scarcity” in this sense always seemed perfectly clear to him, but some people apparently WANT to misunderstand. And the problem with using “rivalrous” is that “it has too much confusing technical connotation.” So, it’s better to “stick with ‘scarcity’ and briefly explain our use/meaning of the term. With regard to knowledge, scarcity-non-scarcity seems to be better and clearer than rivalrous-non-rivalrous anyhow.”
I ran it by Tucker too and his view was: “This is a common confusion but is is essential to understand if you want to understand economics. It’s like math: you have to know numbers to get it. No substitute for a basic specialized education. … we use scarcity in exactly the way all economists use the term. … This is just part of learning economics.”
And I agree with them. Though I don’t mind if others want to use rivalrous instead and/or be more explicit in their clarifications.
The problem, in my view, is not in my use of clear language. But in people’s dishonesty and equivocation. I fear that no matter what terms we use, they’ll be determined to keep doing it. I say: stick with a term, define it, and fight the battle there. I don’t want to keep redefining terms and giving in to them on language because they are stupid or dishonest.
Again, not the issue. The issue is that if you use a rival good for one purpose, it is unavailable for another purpose.
And that is not the basis of property rights.
I can find no meaning in this
Of course you can’t, because you do not have a moral dimension to allow comprehension.
Hubbard: “Again, not the issue. The issue is that if you use a rival good for one purpose, it is unavailable for another purpose.
And that is not the basis of property rights.”
Well the function or purpose of property rights is to permit peaceful use of goods that could not otherwise be used without such use-rules due to the good’s being scarce (rivalrous). As for its “basis”–this is a tricky, vague wording that is open to interpretation. Some mean by it “source”, which is positivistic–as if something decrees or causes the right to “exist.” This is a category mistake. There is no way to derive ought from is. Hume was right. Rand is wrong. Her slapdash statements that what a thing IS determines what it OUGHT to do is childish and does not get around the is-ought gap. In fact the only way to jump the gap is to literally jump it: to build morals on other morals, down down down until you get to one that you simply adopt. Rand herself admitted this — See Binswanger’s “Life-based Teleology and the Foundations of Ethics” [The Monist, vol. 75, no. 1, Jan 1992] which I discusss here http://www.stephankinsella.com/2010/01/16/mises-and-rand-and-rothbard/ . Even Rand admitted that morals flow from a choice: the choice to live. But that choice itself is not a moral choice; it is pre-moral. Thus, even in Rand’s philsophy all rights and norms and morals are hypothetical: based on the choice to live. So the “source” of rights, ultimately, is the choice to live.
Now, I think her natural rights reasoning is too vague and amorphous, but structuraly it makes sense. In my and Hoppe’s view rights are deducible from more basic norms (grundnorms — see http://mises.org/daily/3660#note14), which are themselves simply adopted by those relevant participants in moral discourse. So, if you want to ask what the “source” of rights is–Rand would say it’s the choice to live; I would say it’s the choice to be civilized. You can’t get behind that choice any more than you can get behind the choice to live–you can have psychological or biological or evolutionary explanations, perhaps, but not necessary ones. And that’s okay. We who are civilized can band together against the uncivilized, as it always has to be.
It is a necessary condition. Without it, rights are meaningless, unimaginable and unexercisable.
You revert to your religion where moral takes precedence over logic. It exactly the reverse. Your inability to grasp logic prevents you from realising that the question of morality is unanswerable unless you have a theory that does not contradict itself.
Furthermore, Mark, the problem that you neglected to address is that you do not consistently apply the rules you promote, causality being a sufficient condition for property. You do not even apply it to immaterial benefits of theft of material goods.
I know abandoning a religious belief is hard, I don’t expect you to recognise it as such overnight.
Thanks Stephan,
I agree, the problem is actually that IP proponents do not use the language clearly. But why not make the argument more accessible to them?
Oh and one more thing I realised: according to the IP creationism, the scope of property rights depends on what you are thinking during the production. This also brings up a plethora of questions: why? How do you determine what a person is thinking? What is the objective scope of what a person’s thoughts (other than, of course, the stuff that is in their head)?
Kinsella,
“Well the function or purpose of property rights is to permit peaceful use of goods that could not otherwise be used without such use-rules due to the good’s being scarce (rivalrous).”
Well, this is the core issue that really separates a natural rights libertarian and a positivist socialist.
According to natural rights libertarianism, property rights only serves the function of providing an ethical framework. Not to create a peaceful, loving society.
Of course the end is a peaceful society but that is only a by product of having a rational ethical system.
Property rights tells you what you can and can not do when and if you decide to socialize.
Crusoe’s property, if it serves a function other than keeping Crusoe alive, serves the function of directing Friday regarding his actions when he socializes with Crusoe.
“I agree, the problem is actually that IP proponents do not use the language clearly. But why not make the argument more accessible to them?”
I am not persuaded “nonrivalry” is more accessible, for one. For another, I am stubborn. For yet another, I’ve been using scarcity for 10 years now with little problem and a lot of success and now that language is being used by lots of others in IP arguments, so even if your argument would have been right applied to my 1995-2000 IP writings, by now, it’s more moot.
Kerem, I explained to you several times that the existence of at least two entities and of rival goods are necessary conditions for the concept of rights to have a meaning, a purpose and an area of applicability. Call me stubborn, but I don’t see how referring to morality refutes my argument.
On and on, you profess your belief in things you cannot define, explain or provide evidence for and accuse us of heresy.
the concepts of property and ownership lie fundamentally in the need for man to produce and enjoy values in support of their lives
And whence does this “need” arise? Think it through, Mark.
Consciousness; the pursuit of happiness.
That is Peter: ‘that which is required for man’s survival qua man.’
Yeah, morality again. The missing link in here.
You’re jibbering nonsense, Mark. What is it you’re trying to say? Man needs to produce in order to pursue happiness? What if he already had happiness? What if man lived in a world in which anything he wanted was available the moment he thought of it, etc. Does he still “need to produce”? It’s certainly not “required for man’s survival qua man” or whatever Randian trope you can come up with next.
(The difference between that world and this is scarcity, but you say scarcity isn’t important, so show that your reasoning is relevant for that imaginary world!)
Man needs to produce in order to pursue happiness?
Man’s pursuit of happiness is predicated on individual freedom (his life), itself predicated on property rights, including to the products of his mind; IP.
What if man lived in a world in which anything he wanted was available the moment he thought of it, etc. Does he still “need to produce”?
He doesn’t, does he. Never will. And you avoid the moral component: man needs standards that allow his survival, a set of values, a morality, and the foundation of that morality is man qua man.
It’s certainly not “required for man’s survival qua man”
A morality of man qua man is essential for the life of each individual in society. Without that; without an integrated philosophy for living a free life, then you fall into the mistake you and Kinsella make, just to start with, of justifying the theft of an individual’s IP.That is my very point.
Mark, “of justifying the theft of an individual’s IP.”
Are you at least honest and perspicacious enough to recognize that this is question-begging? It’s not theft unless it’s a legitimate property right, which is what is in dispute here. So calling it theft is just a cheap and disingenuous attempt at circular reasoning.
Stephan: If I ever hear the term ‘question begging’ again from one of your many acolyte teenagers to justify the pilfering of a movie, an ebook, software, whatever, it’ll be too soon.
Why do you refuse to argue your position from the standpoint of morality?
Do you accept property rights, including IP, are also a question of morality, indeed, orginate from morality?
Do you believe in a morality of man qua man? If you do, then justify your standpoint pursuant to that. If you don’t, then do you believe, say, in the non-initation of force principle – and why would you?
Oh: It’s not theft unless it’s a legitimate property right
According to property rights orginating in a morality of man qua man, it is a legitimate property right, thus theft. But let’s begin with my first question on this post and work through to the logical conclusion I’ve just stated here (ergo, no circular reasoning).
Man’s pursuit of happiness is predicated on individual freedom (his life), itself predicated on property rights, including to the products of his mind; IP.
You’re going in circles, again. (Oh, and question begging — if you don’t want to keep hearing that, the solution is to stop doing it, not to insist that people stop calling you on it!) In ImaginaryWorld, why does he need property rights to have individual freedom?
He doesn’t, does he. Never will.
No…it’s a “thought experiment“, Mark, intended to explicate your theory.
Mark:
“Stephan: If I ever hear the term ‘question begging’ again from one of your many acolyte teenagers to justify the pilfering of a movie, an ebook, software, whatever, it’ll be too soon.”
Mark, we here all agree on the basics of libertarian morality, I take it–that we should try to live in peace and harmony and cooperation, productively; that we should respect each others’ rights. What we disagree on is whether information-patters are or ought to be subject to property rights protection. Do you agree with this characterization of our agreement and disagreement?
If so, you can’t settle the question of whether a novel, etc., is property, by referring to its copying as stealing or pilfering. Because this implies that it is property. All we all agree on is that it is copying, to copy it. Whether it is stealing is the *question*. You are just asserting it. That’s question-begging, son. And you are either an unfair discoursant, or dimwitted, if you refuse to see this.
“Why do you refuse to argue your position from the standpoint of morality?”
I do: by pointing to shared fundamental norms–norms that we all share, as libertarians.
“Do you accept property rights, including IP, are also a question of morality, indeed, orginate from morality?”
I am not sure what this means–”originate from morality”. This is vague, imprecise, and subject to equivocation by people like you.
“Do you believe in a morality of man qua man?”
I think so, but I’m not sure what this loosey-goosey type language really means.
” If you do, then justify your standpoint pursuant to that. If you don’t, then do you believe, say, in the non-initation of force principle – and why would you?”
for the same reason you do: because it’s the only ethic compatible with fundamental values I choose–such as the choice to live (in your framework), or the choice to prefer peace and cooperation to violence and barbarisms.
“According to property rights orginating in a morality of man qua man, it is a legitimate property right, thus theft.”
but you are just asserting this. You have not shown it. In fact it’s clear that IP can only come from the state and the state itself is criminal and anti-rights. Further, it’s clear that IP rights infringe real rights in property that we all agree with. It’s incoherent and confused.
SK wrote:
“Further, it’s clear that IP rights infringe real rights in property that we all agree with.”
People have the right to do what they want with their property only if it does not violate the rights of others. If IP rights are real, then anything that I do with my property which infringes on another’s IP rights is not something I had a right to do in the first place. In other words, in stating that “IP rights infringe real rights in property”, you are simply implicitly assertng that IP rights have priority over “real” property rights. This is every bit as much question-begging as what Mark was saying.
“People have the right to do what they want with their property only if it does not violate the rights of others. If IP rights are real, then anything that I do with my property which infringes on another’s IP rights is not something I had a right to do in the first place. In other words, in stating that “IP rights infringe real rights in property”, you are simply implicitly assertng that IP rights have priority over “real” property rights. This is every bit as much question-begging as what Mark was saying.”
But that’s the question: are htey real. They prima facie at least interfere with peaceful use of property. IP advcoates have no other argument.
“But that’s the question: are they [IP rights] real.”
Yes, that’s the question, and you were simply assuming the answer is “No”. *grin*
“They prima facie at least interfere with peaceful use of property.”
OK, that I can agree with.
“IP advcoates have no other argument.”
Well, yes, they do. They have utilitarian arguments that are very similar to utilitarian justifications for regular property rights (without IP, society as a whole would be considerably worse off). They also have moral arguments that are very similar to the moral arguments for regular property rights (a producer of something that benefits society should have the right to some recompensation for the labor involved in producing that benefit, and those who wish to partake of the benefit without paying their fair share of said recompensation are parasites). These are not necessarily arguments that you find compelling, but they are arguments. They are just not arguments conducted on your terms.
“They have utilitarian arguments that are very similar to utilitarian justifications for regular property rights”
And very similar to their more statist cousins’ utilitarian justifications for universal “health care” and smoking and dietary laws. They can’t just sit by while half their livestock commit slow suicide. These utilitarian arguments always end up decided by the gun. My all time favorite Hubbard closing argument on “IP”:
“I’m sure you won’t be confused as they lead you to the cells”
mpolskill,
I was just pointing out that it was unfair of SK to say that the pro-IP set had no arguments. They do.
But I didn’t say I thought the pro-IP arguments were all that good! I personally think that in order for IP laws to be truly enforcable, a police state would be necessary. Otherwise, how can you tell if something has been “stolen” when the originator of the information still has his copy? I think it’s particularly funny/sad when people whose political philosophy is supposedly a variant of natural law philosophy stubbornly fail to take into consideration the differences in nature between normal physical property and intellectual “property”.
Russ: ““But that’s the question: are they [IP rights] real.”
Yes, that’s the question, and you were simply assuming the answer is “No”. *grin*
“They prima facie at least interfere with peaceful use of property.”
OK, that I can agree with.
“IP advcoates have no other argument.”
Well, yes, they do. They have utilitarian arguments that are very similar to utilitarian justifications for regular property rights (without IP, society as a whole would be considerably worse off). They also have moral arguments that are very similar to the moral arguments for regular property rights (a producer of something that benefits society should have the right to some recompensation for the labor involved in producing that benefit, and those who wish to partake of the benefit without paying their fair share of said recompensation are parasites). These are not necessarily arguments that you find compelling, but they are arguments. They are just not arguments conducted on your terms.”
but utilitarain arguments are bankrupt: they are unprincipled; they have zero evidence for their claims; it’s immoral to set policy based on wealth-maximization anyway.
Right, I figured that’s what you were doing, I was just trying to point out that their rights based arguments when enforced looks a lot more like a police state than the individual protecting his (corporeal) homestead himself.
Sort of digression: I don’t have the skills to do it, but I was trying to get across the idea elsewhere that that individual (corporeal) homesteader is not really alone in the kind of society we used to have (and we still scrape by on having a remnant of it to this day). There was a widespread and deep culture of respect for property. This is always preeminent in a stable society and springs from below as naturally as anything can. Anyway, I and a lot of people already have a kind of natural respect for what these misguided crusaders call “IP”. I don’t know, these giant arguments…did anybody here see Scorsese’s “Casino”? These “IP” crusaders remind me of the gangster who says, “Leakage my balls! l want the guy who’s robbing us!”
Russ, I know you just want the holes in arguments to be closed. The problem with this argument is that it is fuzzy. Causality extends to infinity, so no arrangement or rights will give people involved in the production the full reward for the benefits that the society reaps from it. This has nothing to do with immaterial goods. The same problem is present with material goods. So the question for IP proponents logically follows: How do we divide causality into property and externalities?
SK wrote:
“it’s immoral to set policy based on wealth-maximization anyway.”
Funny, I’ve never come across an argument for regular property rights that doesn’t somewhere take into consideration utilitarian concerns. For instance, even in a natural law/scarcity-based argument for regular property rights, you might have someone ask “OK, so I buy your argument that material things are scarce. But so what? Why should that mean that the one person get exclusive ownership to an object?” The best response that I can think of would be that if we have regular property rights, then that allocates the use of scarce property in a way that benefits us all in the long run, much more than a system where regular property rights don’t exist and we all own things in common. Other than this, you’re just trying to rationalize the gut feelings that you do or don’t have.
mpolzkill July 26, 2010 at 9:56 am
“I was just trying to point out that their rights based arguments when enforced looks a lot more like a police state than the individual protecting his (corporeal) homestead himself.”
Oh, I agree completely. Even if there is a state to enforce laws instead of the individual doing it, regular property laws are much more easy to enforce without a police state than IP is. For instance, if there is a big empty space in the garage where the riding lawn mower used to be, it’s pretty easy to tell that somebody took the lawn mower. But with computer software, it’s difficult to see how the State could tell whether somebody copied software, without Big Brother software in everybody’s computers, keeping an eye out for “evil-doing”.
“Anyway, I and a lot of people already have a kind of natural respect for what these misguided crusaders call “IP”. I don’t know, these giant arguments…did anybody here see Scorsese’s “Casino”? These “IP” crusaders remind me of the gangster who says, “Leakage my balls! l want the guy who’s robbing us!””
I know what you’re saying. I read an article on Coase’s Theorem a long time ago on either this site or lewrockwell.com, where somebody was trying out some abstruse and contrived argument about somebody flooding your cow pasture, trying to explain why Coase’s Theorem was wrong. One of the old-timers, Gary North or Butler Shaffer or somebody, said something to the effect of “Here’s why it’s wrong. It’s my bleepin’ cow pasture!”
Yes, some people have a gut-level understanding that certain things are wrong, and no amount of argument will convince them otherwise. Actually, I think us anti-IP-ers are the same way, it’s just that while we get a gut-level feeling with respect to regular property, we don’t get that same feeling in the gut with respect to IP. That, really, is the extent of the difference between us and the pro-IP-ers, I think. The rest is an exercise in rationalization for those gut feelings.
Peter Surda:
“Russ, I know you just want the holes in arguments to be closed.”
No, I’m just trying to keep SK honest.
Russ:
I disagree. The answer is that anyone participating in argumentative discourse necessarily presupposes the validity of–that is to say, himself adopts–certain grundnorms, such as those related to the value of interpersonal peace and cooperation and conflict-avoidance: basically an other-respecting civilized stance. The only political ethics compatible with this is the libertairan one. The socialist ethic contradicts it. It’s not a gut feeling. It’s not a discovery. It’s a choice: a choice to be civilized and adopt civilized norms; to enter the arena of civilized behavior and interaction. For people that have chosen this–for whatever reason–certain higher-order norms are implied.
It doesn’t. But since alternative usages of the object are mutually exclusive, there needs to be some sort of method for deciding which one should take precedence. But you cannot apply this analysis to non-rival objects. You cannot exclude from usage of non-rival objects, you can only exclude from usage of rival objects that are causally related to the non-rival object in question.
You could argue that if the rules are other than “first one gets it”, violence is a necessary component of the system. That’s not utilitarian (although, admittedly, it is also not scientific).
“I disagree. The answer is that anyone participating in argumentative discourse necessarily presupposes the validity of–that is to say, himself adopts–certain grundnorms, such as those related to the value of interpersonal peace and cooperation and conflict-avoidance: basically an other-respecting civilized stance.”
Ah, yes, Argumentation Ethics. I’ll leave this one alone, other than to say that I don’t think much of Argumentation Ethics. It’s no more successful at deriving an objectivism ethics than Objectivism is. Actually, I’d say it’s less successful, and I’m not really a fan of Objectivism.
“It’s not a gut feeling. It’s not a discovery. It’s a choice: a choice to be civilized and adopt civilized norms; to enter the arena of civilized behavior and interaction. For people that have chosen this–for whatever reason–certain higher-order norms are implied.”
The funny thing is, people have differing gut feelings regarding what is civilized and what is not. Some people feel that it is uncivilized to benefit from somebody else’s labor, without giving that person some sort of recompensation. Some people even feel that benefitting from such labor without recompensating the laborer is so parasitical and uncivilized that the recompensation should somehow be made enforceable by law. Others feel more strongly about regular property rights, and feel that an attempt to restrict their rights to use their regular property as they see fit, in a misguided attempt to protect IP “rights”, is uncivilized. In other words, different civilized people read different implications from civilization in general. I would be incredibly surprised if you or Hoppe could prove beyond a shadow of a doubt that one reading is objectively correct and the others are not.
Peter Surda wrote:
“But since alternative usages of the object are mutually exclusive, there needs to be some sort of method for deciding which one should take precedence. But you cannot apply this analysis to non-rival objects.”
No, you cannot apply this particular argument to non-rival objects, but you can apply other utilitarian arguments to them. Whether those arguments are as compelling as those applying to rival objects is another matter.
“You could argue that if the rules are other than “first one gets it”, violence is a necessary component of the system. That’s not utilitarian (although, admittedly, it is also not scientific).”
Well, I disagree. I think that if violence is a necessary component of the system, then it is pretty easy to argue from there that such a system will make most people worse off on the whole than a non-violent system would.
I’m also not sure what science has to do with anything. Science has to do with determining matters of fact, not matters of value. (Yes, call me crazy, but I don’t believe that matters of value can be proven scientifically or logically.)
Russ wrote:
“It’s no more successful at deriving an objectivism ethics than Objectivism is.”
Crap! That should have said:
“It’s no more successful at deriving an objective ethics than Objectivism is.”
God, I wish they’d bring back the old post editing capability, rather than the new “You have 5 minutes til the edit button self-destructs” shit.
As I said, there is no way to apply this rule consistently. Causality extends to infinity. No matter how far you stretch the requirement for compensation, there will still be uncovered residual benefits. This has nothing to do with rivalry/scarcity.
No, you can’t. That’s the problem, it’s impossible. There is no choice to be made, and no method of evaluation. In order to work around it, you need to apply utilitarian arguments to the rival objects that are causally related to the non-rival ones. You can say that non-rival objects are a way of looking at causality. They are not actual objects.
Ok, let me put the final missing piece into the puzzle. It is pointless to muse about value if the underlying theory is self-contradictory. I am trying to refute theories. That’s what falsificationists do.
Ah, yes, Argumentation Ethics. I’ll leave this one alone, other than to say that I don’t think much of Argumentation Ethics
You don’t understand it (this is obvious based on the rest of your post), so how do you know what you think of it?
Peter wrote:
“You don’t understand it (this is obvious based on the rest of your post), so how do you know what you think of it?”
What’s not to understand about AE? If you engage in debate instead of beating people over the head with clubs, then you take for granted “the validity of…certain grundnorms”. In other words, if you honor a person by trying to convince him of something instead of coercing him, then by that act itself, you acknowledge that he has rights.
Even if I found the argument convincing in general (which I don’t), I don’t think it implies any particular position regarding IP.
Peter Surda wrote:
“As I said, there is no way to apply this rule consistently. Causality extends to infinity. No matter how far you stretch the requirement for compensation, there will still be uncovered residual benefits. This has nothing to do with rivalry/scarcity.”
What is so hard about the concept that nobody may copy something without the permission of the owner? By propertizing the information, that internalizes the externality, as ownership rights normally do. There is nothing difficult or problematic here, AFAICT.
Russ wrote:
“No, you cannot apply this particular argument to non-rival objects, but you can apply other utilitarian arguments to them.”
Peter Surda wrote:
“No, you can’t. That’s the problem, it’s impossible. There is no choice to be made, and no method of evaluation. In order to work around it, you need to apply utilitarian arguments to the rival objects that are causally related to the non-rival ones. You can say that non-rival objects are a way of looking at causality. They are not actual objects.”
What is all this horseshit about choices, causality, etc.? I hate to break it to you, Peter, but I haven’t been following your posts on IP recently, and have no fricking clue what the hell you’re going on about. All I know is that you can apply utilitarian arguments to IP. People have done it for years. For instance, you can say, “Without IP, people would not have the incentive to create certain ideas/programs/works of art. We as a society would suffer if these ideas/programs/works of art did not exist. Therefore, we must have IP.” It’s pretty simple, really.
“Ok, let me put the final missing piece into the puzzle. It is pointless to muse about value if the underlying theory is self-contradictory. I am trying to refute theories. That’s what falsificationists do.”
I’m not sure you understand me. I’m talking about value in the sense of value judgements, not in the sense of cost. As far as I am concerned, value judgements precede theories.
What’s not to understand about AE?
I don’t know…but hardly anyone seems to understand it (every single post against it that I’ve read has been arguing about something else)
If you engage in debate instead of beating people over the head with clubs, then you take for granted “the validity of…certain grundnorms”. In other words, if you honor a person by trying to convince him of something instead of coercing him, then by that act itself, you acknowledge that he has rights.
You’re making a big leap there; possibly that’s why it’s not convincing to you: you’re not acknowledging that he has rights; you’re demonstrating that you have a preference for persuasion over force.
If you make that argument, you need to explain why “copying” differs from externalities, otherwise you are inconsistent. Why is it so hard to comprehend that there is no point in discussing self-contradictory theories?
Lack of consistency is.
Ok, a quick rehash. Non-rival goods aren’t consumed when used. All the possible outcomes of them can be executed simultaneously, they are not mutually exclusive. So, you have no unit of measurement which tells you which of the choices is better to reach given ends (which makes utilitarianism impossible). There is no need to make a choice, and no method of evaluating it if it was there.
How can there be a value judgement of a theory that is self-contradictory? The answer makes no sense.
A rental contract involves the owner of something making a contract with someone to allow use of it under certain conditions, usually in exchange for something else to offset the lack of being able to use it or rent it out to anyone else while the contract is in effect. We have no problems grasping it. The problem you have with us is that we grasp the fact that there’s no need for ownership of things which aren’t limited. You are the one isn’t grasping this, and thus suggesting absurd things like renting an idea out.
usually in exchange for something else to offset the lack of being able to use it or rent it out to anyone else while the contract is in effect. We have no problems grasping it. The problem you have with us is that we grasp the fact that there’s no need for ownership of things which aren’t limited.
Well, I lease software, and there’s never been any grey areas around that Shay. Why can’t the IP thieves grasp that? (Perhaps because it doesn’t pay you to?)
“Perfect comment. They basically view value as a substance, an objective thing, that you own. They are crankish on economics, basically. Almost Marxian.”
I am Austrian on economics. That’s the opposite of the IP-socialist position that you take – talk about pot calling the kettle … That’s why every post you make disgraces von Mises name, not the opposite. And values are from an objective world – yes. You admit here you hold with the destructive subjectivist ethic of today’s left, and their relative morality? There’s no freedom to be found in that Stephen, just the violence and the collectivism you see our Western societies currently devolving down to. That’s not civilised, free society, that’s barbarianism.
This is not an argument, Hubbard. It’s just imprecise, flowery, metaphorical, loosey-goosey, emotionalist language. You just don’t have an argument. You flip back and forth between principle (argued on the level of incoherent and vague emotional feelings) and consequentialism.
Regarding the consequentialism, Kinsella, my mistake is trying to argue value, vis a vis, morality, per se, in here. The argument of rights turns on morality, and that is what the underlying single priniciple you espouse on these threads is bereft of.
When your moral view is unquestioned it’s axiomatic. Provided one doesn’t accept your axiom the discussion can go nowhere. You can treat your view as law, but don’t expect to win converts.
Mark, I’d ask this much though, what is the more important principle, liberty or property? Would you forsake limited government and deal with a society of absolute control in order to maintain your view of property? Because that’s what it’s going to take to enforce IP in the future. You won’t know the “crime” has occurred without invading everyone’s privacy, breaking encryption, etc. If you contest this I don’t think you’ve looked into encrypted p2p, and I’d suggest searching the net.
As an alternative, imagine that there was a device that could cause humans to recall an event exactly as it occurred. They could watch a film or whatever they were doing back at that time. Would it be illegal for the person to use this recall device for their own memory?
What if evolution provides this level of recall over time to humanity? What meaning has copyright then? Are we going to create devices to restrict our recall so you can “retain” your property? One could argue that the existence of computers is exactly such an evolution, because even though it’s not biological as these devices become cheaper, and smaller, we will almost certainly at some point wear them, or perhaps even embed them into our brains. I will dread the future if the reasoning of IP is taken seriously still at that point.
Obviously the post was intended as a bit of a joke, but this isn’t an IP issue in the sense of a state granted monopoly. The Soup Nazi had kept his recipes as a trade secret – no state intervention involved (assuming, of course, Soup Nazi didn’t try to sue Elaine later for publicizing his recipes). I’m sure plenty of chefs keep their recipes closely guarded secrets. If other chefs can “reverse engineer” the recipes from the finished dishes, more power to them. I have absolutely no problem with a chef or anyone else keeping something they developed secret even when it gives them a big advantage over everyone else. It’s enforcement by the state that makes the difference.
“Obviously…”
Come on Cap, don’t make us call you “Captain Redundancy”, haha. Good post, though.
It took me a long time to figure out what the motivation was, for alleged Austrians to oppose such a seemingly Austrian principle as the sanctity of private property rights– in this case in the intellectual property realm. But it was obvious.
You guys are mostly techies, engineers and software people. You’d love nothing more than to take a free product– the product of artists, writers, musicians and moviemakers– marry it to virtually free modes of transmission and sell the resulting delivery system for megabucks.
It’s another triumph of greed over principle. Move all IP into the public domain and sell it dearly, wrapped up neatly in this year’s tinfoil.
Excellent, we now have the antibarometer working for us.
So, a rigorous scientific analysis of the nature of property rights has absolutely nothing to do with our stance, right? We’re all just a bunch of egoistic utilitarians.
And michael’s the principled statist who’ll save the poor artists and musicians from us. At least he’s consistent in supporting everything the state does.
Re: Michael,
Intellectual property is NOT property, Michael. You cannot being a discussion parting from a false premise.
IP is a made-up “right” just like other made-up rights like the right to have healthcare paid by someone else or a right to a job – all of them actually violations of property rights.
Old Mexican,
You should have started your sentence with “According to our cult, …”
Re: Andras,
And what cult is that, Andras?
“Intellectual property is NOT property, Michael. You cannot being a discussion parting from a false premise.”
If I use my skills, tools and hours of labor to build a cabinet, that’s my property right?
And if I use my skills, tools and hours of labor to write a book, then that’s NOT my property. Right?
I think I understand you completely.
The paper and ink that make up your book are your property. But the pages and ink of my book, which you judge to be similar to your book, are not your property.
You cannot own a pattern of symbols. You can only own the tangible materials that are arranged into that pattern of symbols.
” And if I use my skills, tools and hours of labor to write a book, then that’s NOT my property. Right? ”
Wrong. It is your property. Hence, there is no internal contradiction in Old Mexican’s position. So there!!!!
However, when you make a copy of that book and sell ….. I repeat, sell it to me, the copy becomes my property. If I make a copy of that copy, that too is my property. If the copy made from the copy is my property, I should be free to do with it as I please, including sell it or give it away for free.
At which step do you have a problem?
Keep going:
“If I use my skills, tools and hours of labor to achieve a position in a company, then that’s my property. Right?”
You understand him completely? Do people have a right to “affordable” “health care”?
One cabinet – one cabinet = zero cabinets.
One book + one facsimile = two books.
Must be an interesting one, sell your autograph.
Aside: Who the hell even reads? Not you.
Re: Michael,
You’re equivocating, Michael. The cabinet and book are physical things, rivalrous and exclusive (meaning, only one can possess them at one time), but not the ideas behind them. You own the wood, glue, nails and stain which make the cabinet (assuming you did not steal them), so you own them even if they form a cabinet; you own the paper and ink you used to write the book, so you own those. But you cannot own someone else’s glue, wood, stain and nails just because they make a cabinet that looks identical to yours. By the same token, you cannot own someone else’s paper and ink just because there are patterns of words that match those you wrote in your papers.
This is why IP is a made-up right – it pretends to pass ownership of property from one person to another under a premise of appearance, i.e. you own someone else’s things because they look like those you purportedly created.
You understood zero, you’re merely trying to look cute.
Old Mexican
I heard you mention maxwell’s demon on these forums once (I think). You seem totally against IP – but are you not troubled by the fact that you can do work (in the technical sense of lifting a weight) with information? I am – I’ve not managed to fully think my way through this yet though.
Re: Jerry,
No more am I troubled by that than being troubled by the idea of doing work with anything else. Information is just a tool. My employers do not pay me for the information I provide, they pay me because I can provide it faster and better than others.
“Naive trust in the power of words to command reality is at the center of all mass delusions.”
Just because I say “A=!A” doesn’t make it true.
michael’s is an interesting version of the class struggle.
The two classes involved would be the class of creators and that of borrowers who don’t want to pay.
Michael, the motivation is truth and that we see that it’s quite obvious IP is artificial monopolies granted by the state that undercuts property rights. As for techies and their motivations–are you aware I’m a practicing patent lawyer? My interest is for the system to be preserved. I oppose it despite this interest. So don’t give me this psychologizing.
The entire episode revolves around property rights. You may recall the street “thugs” who simply walk up to Kramer, who is guarding Elaine’s armoire on a busy sidewalk, and tell him “You have some kind of problem here? What is it you not understanding? We taking the armoire and that’s all there is to it. Okay?” I love that exchange – I imagine it to be kind of like what the officials of New London said to Kelo in their eminent domain theft in broad daylight.
The owner of the recipes is Elaine, and only because her armoire was stolen. The soup Nazi gave her the new armoire (unknowingly) in which he had left his recipes (also unknowingly). “Don’t you see? I could give these to every restaurant in town. I could have ‘em published! I could – I could drop fliers from a plane above the city.” So maybe the IP issue is a moot point here.
Not that there’s anything wrong with it.
I had no deep point in posting this, contra the seriosos. It’s just amusing.
But according to IP law Elaine does NOT own the recipes just b/c she owns the pieces of paper inside the armoire. She only owns those pieces of paper. She has no right to copy them, etc. According to copyright. This is the law on letters — if Silas writes Mises a letter, Mises still can’t publish the letter from Silas without Silas’s permission. This is the very problem with IP (no offense, Silas/Person/Richard Harding).
Perhaps instead of dropping flyers she could simply re-gift the armoire, with the recipes still inside, to the soup maker of her choice. Anyway, it would be a shame to let the law get in the way of a hot bowl of sweet revenge.
Let me play devil’s advocate for a moment.
So far I have come across only one pro-IP argument with any sort of weight to it.
The author of a book can try and simulate IP with contracts. However it is clear that contracts cannot apply to third parties.
Now a situation can arise where third parties can only get a copy of a book as a result of criminal behaviour. That is, someone else has breached their contract by duplicating the book and distributing it.
A situation can be reached where it can be shown that profit’s made by third parties have only materialised as a result of the criminal actions of someone else.
This leads many to conclude that IP laws are required. ie, that contract law is insufficient and an additional “blanket” law for the whole of society is needed.
So far, the main anti-IP response to this line of reasoning can be summed up as “tough luck to the author”. But you can see how many people find this response inadequate. I’d like to hear some more sophisticated anti-IP responses to the above line of reasoning.
I don’t think the response is inadequate at all. I am not sure what your premise is but you seem to believe that the ability to copy things is detrimental to authors/artists so we must protect them from this. However, this couldn’t be further from the truth. Artists/authors have because of copying the ability to reach more people than anyone else could at the same cost/person ratio. And this great number of people can be convinced to do many things.
I’m not saying “tough luck” at all. I’m saying that the author has to be able to find enough people who like him or her that he can convince them to buy from endorsed sources (read the article on creator endorsed mark, which could be extended with independent validation services provided by authors/etc.) or to go to his or her concerts, events, etc. where he can get money.
I don’t see the system as a whole working a whole lot differently than it does now in reality, because even though there are a ton of “evil pirates” out there downloading over bittorrent you still see a substantial amount of money from these same people being spent on movies/etc. in theaters and on DVDs. In fact, I’d go so far as to say those pirates are so interested in media they probably buy more than your average person. There are even studies that have shown this (this is just a quick one I found, there was another I read months ago). http://arstechnica.com/media/news/2009/04/study-pirates-buy-tons-more-music-than-average-folks.ars
As someone who is interested in Japanese animation and who downloads free fan subtitled video I can tell you this is true anecdotally also. I buy a lot of anime from distributors in the states. I have spent many thousands of dollars on it.
What not having to spend money on everything does for me, and does for those I buy from is it lets me allocate my money towards those things I want most, or those shows and programs I liked the best. Otherwise I’d end up spending more money on shows I didn’t really like because (unfortunately) it’s not always possible to preview (beyond reviews, which are very subjective and no person mirrors the taste of another).
Had anime not been available freely on the internet when I originally got into it I doubt I would ever have bought any of it. So I’m a successful marketing story, that wasn’t even connected to something that they wanted to occur. Unfortunately, they still think the state and IP law helps them. I don’t believe it does help anyone, except perhaps lazy distribution companies who don’t want to take advantage of new methods because of fear of the unknown (or they realize the new methods might make their job unnecessary since the artist/author can reach the customer directly more now than ever).
I find your response to be inadequate.
If I was pro-IP I would respond with something like:
It irrelevant whether or not you believe the author gains from the third parties activities arising from the initial criminal act. The fact is, the contract was designed in such a way so that copies of the author’s book could not be flooded throughout the economy. If no breaches of the contract occur, then the author’s wishes will be fulfilled. As a result of the criminal behaviour of just one individual, the author’s wishes have been violated.
If we institute copyright law, we get a situation whereby the author’s wishes remain somewhat fulfilled even if criminal acts occur.
Damnit, look what you “IP” believers did! You suck so bad that you bored the life out of Jay and now he’s working for you. No, this is actually very good, give us big fat Commie rats hell, Jay.
Jay you don’t seem to be arguing from principle. You are conflating strategy and persuasiveness, with truth. Are you really saying our arguments criticizing IP are substantively incorrect just because authors might feel unpersuaded by them? Does the existence of beneficiaries of social security, who would surely fight any attempt to cut off their monthly check, mean that we are wrong to say it’s theft?
haha no Stephan.
mpolzkill is spot on … I am bored of the usual nonsense arguments I get from the pro-IP crowd and have consequently decided to try and argue from a pro-IP perspective.
Don’t worry, I’m still firmly in the anti-IP camp. It just looks like more fun trying to argue from an undefendable position.
Jay,
I would respond that we should not institute copyright law to ensure that “the author’s wishes will be fulfilled”, if those laws themselves result in rights violations, especially if the author’s wishes not being fulfilled does not result in rights violations.
Which brings me to this point: an author’s wishes do not constitute rights. Just because an author wishes to profit, monetarily or otherwise, from a work, that does not imply that he has the right to do so. So we’re back to the argument that an author’s labor gives him rights (ownership) over that which is created.
Russ I absolutely agree.
However here’s the thing. What if everyone is aware that the copies they have in their possession have only come into existence as a result of a criminal act?
People with those copies are profiting from a known crime.
Can’t that be considered a form of exploitation? Can’t that be considered a crime in of itself?
Jay, you didn’t start this whole line as a clever way to get around to the American Indians, did you?
mpolzkill,
Half of your posts cause me to go into uncontrollable fits of laughter.
The other half leave me staring blankly at my computer screen with a confused expression on my face.
Haha, I’ll just pretend you’re always tired on those, Jay. Anyway, they can’t all be winners.
Everyone should know of the massive crimes against the American aboriginal population by the State and freelance criminals. Therefore, we are all criminals too for profitting from our forefathers wiping them out and leasing us the land (I can’t even say “giving” in jest).
Jay, my answer would be that non-property benefits are present in all activity, regardless whether it’s legal or not, and all goods, regardless whether they are material or not. We call them externalities. Why should an arbitrary subset of externalities be taken and labelled “IP” and granted rights? Merely because without it, the authors are angry? Or because it fits their present business methods better?
Peter,
Your response pretty much sums up how I would respond. However, just for fun, I’m going to try and argue against you anyway.
Is the subset really all that arbitrary?
What if the contract was extremely specific?
Surely a case could be made that all the goods (the copies) that have been produced in a manner violating that contract should be prohibited.
Afterall, a crime has been committed. Can’t a case be made that, if there is a way to return to the state of affairs before the crime was committed, then we should do so?
Now considering what IP proponents delivered, that approach actually makes sense.
Well, it depends on what you mean by arbitrary. It is probably more accurate to say that the subset is utilitarian. It is determined by the cultural and social background and history, prevailing mythology, norms, and business models. So it is not completely arbitrary. But it is also not objective.
That does not answer why causality should be a sufficient condition in the first place.
Sure, an argument can be made that people who benefit from an occurrence of a crime should not benefit from it. But what’s the solution? The most you can do is to affect a tiny fraction of the causality, causing more collateral damage in the process. An argument that those who were damaged from fixing the damage caused by the crime should not be damaged, and those who benefit from fixing the damage caused by the crime should not benefit from it either. And so on, until infinity.
Let’s say person A steals two eggs from X and sells them to B (who knows nothing of the theft). B makes an omelette and sells it to C. C eats it for lunch. Once these facts are discovered, should all the processes be reversed? Should C vomit out his lunch, give the outcome to B, expecting him to reassemble the eggs? Let’s say X found that two eggs are missing so he hires a private detective to investigate. The detective having this job is causally related to the theft. Can he therefore request remuneration or is he obligated to provide his services for free? Should those that view illegitimate copies of media be brainwashed to forget what they saw? If I bought a DRM’ed product, couldn’t open in and then decided to download a DRM free version from a p2p site, what then?
Great replies Peter.
I kinda anticipated your responses and hence made the post below.
Basically I’m asking the question: What if everyone was aware that the eggs were stolen?
Doesn’t copyright fulfill the role of letting everyone know that any copies they encounter have only come into existence as a result of a crime?
Obviously this is very tricky territory because the word “copy” is not defined. But maybe there is a way to sufficiently define “copy” for this purpose. (I kinda tried to below)
“Basically I’m asking the question: What if everyone was aware that the eggs were stolen?
Doesn’t copyright fulfill the role of letting everyone know that any copies they encounter have only come into existence as a result of a crime?”
Jay, the problem is eggs that are stolen are still owned by the owner. But an idea is not.
The genesis of knowledge is not relevant. Basically the “copy” is just information. I cover a good example of this in my Against IP — the example about “cooter” and the oil under the land. Suppose A knows a fact, and B robs him and discovers it, and publicizes this previously-secret fact. Now the world knows this fact. Yes, it is the result of crime. So what? If it’s knowledge and factual, what are people to do–pretend they don’t know what they now do know? Not act on this knowledge?
Can’t the case be made that certain actions on knowledge can be a crime?
Your friend robs a bank and gets away. You know where your friend is hiding. Certain actions on this knowledge are considered a crime. For example, if you act in a manner that conceals your friend’s location from those seeking justice, aren’t you then an accessory to the crime?
Similarly, a copy of a book comes into your possession. You know for a fact that this copy has come into existence as a result of a crime. You know that the original agreement between author/buyer was a “no duplication” contract. By now committing the act of duplicating this copy, aren’t you now an accessory to the crime?
Jay: it’s not clear whether failure to reveal information makes you an accessory. This would only be the case if you had a duty to spill the beans. Do you? If you actively aid in hiding him, I suppose so.
“Similarly, a copy of a book comes into your possession. You know for a fact that this copy has come into existence as a result of a crime. You know that the original agreement between author/buyer was a “no duplication” contract. By now committing the act of duplicating this copy, aren’t you now an accessory to the crime?”
No. The crime was already committed. Further, even if you make this argument, then you are just coming up with something like trade secret: it can only work so long as the book has not been widely bootlegged yet. But once it is, the information is publicly known, and people using that information does not make them accessories.
a copy of a book comes into your possession. You know for a fact that this copy has come into existence as a result of a crime. You know that the original agreement between author/buyer was a “no duplication” contract. By now committing the act of duplicating this copy, aren’t you now an accessory to the crime?
If you act to prevent the owner getting his book back, you’re in much the same position as the guy helping to hide the bank robber, yes. But you’re not bound by the no-duplication contract. If you copy the book and return it to the rightful owner, what have you done wrong? (edit: Or, rather, given that book you’re copying is a duplicate that shouldn’t have existed according to the contract, and therefore has no rightful owner, if you copy the book and then destroy it! Is that different from simply keeping the book? If it has no rightful owner anyway, isn’t that just “homesteading”?
)
Case 1: Someone commits murder. You know that person has just committed murder. They jump into your car and you voluntarily drive them down the road. This allows them to escape.
Case 2: Someone breaches their non-duplication contract and creates a copy of a book. You obtain this copy. You know that this copy was created by an illegal act. You duplicate the copy and spread them around.
In both cases you are performing a peaceful action. Driving down the road and making copies of a book are both non-violent acts. However, driving down the road is considered illegal because you have prior knowledge of a crime. Yet duplicating the copy is not considered illegal even though you had knowledge of a crime.
In both case you have previous knowledge of a crime yet one action is illegal and the other illegal. My question is, how do you determine which actions are permitted and which are not permitted when one has knowledge of a crime? What is the dividing line between illegal and legal? Where is the boundary?
Jay:
“Case 1: Someone commits murder. You know that person has just committed murder. They jump into your car and you voluntarily drive them down the road. This allows them to escape.”
Seems a bit presumptuous to assume it’s “voluntary”. Acontextual or unrealistic. If I know he committed murder I will likely feel coerced. Not voluntary.
“Case 2: Someone breaches their non-duplication contract and creates a copy of a book. You obtain this copy. You know that this copy was created by an illegal act. You duplicate the copy and spread them around.”
WEll actually in the first case I’m helping them evade capture and liability. In the second case, I’m actually making it more likely they’ll be caught.
“In both case you have previous knowledge of a crime yet one action is illegal and the other illegal. My question is, how do you determine which actions are permitted and which are not permitted when one has knowledge of a crime? What is the dividing line between illegal and legal? Where is the boundary?”
Well you have to properly characterize the action. If I duplicate a book that I am not under any obligation not to duplicate, I’m not committing a crime, and not helping the original contract-breacher get away with his crime–his crime is already committed.
But even if I should not do this, the nature of information is that once it is widely made public, then all the millions of poeple with access to this information are not aiding and abeting antything; the genie is out of the bottle. The law even recognizes this idea in the way it handles trade secrets: you can get an injunction against a handful of people about to spill the beans and ruin the trade secret, but once it’s public the information is no longer secret and nothing can be done except sue the infringers for monetary damages.
As for figuring all this out–you need a coherent theory of libertarian causation, which I tried to sketch out an appraoch to here http://mises.org/journals/qjae/pdf/qjae7_4_7.pdf
Great work Stephan.
I enjoyed reading that link.
You pretty much smashed my pro-IP argument with one word: Intent.
I’ll have to try and come up with something cleverer next time.
Thanks for the debate
Jay: I need to think a bit before I reply.
Stephan: I have a problem with the relevance of the article you link. One one hand, it is a very good explanation of how to determine aggression and aggressors. On the other, it only addresses actions that lead to the aggression (i.e. occur before it). We were talking about actions that happen after the aggression, i.e. those that are the outcome, rather than the cause, of the aggression. Just like there is a need to determine which of the parts of causality leading to the aggression are relevant, we need to determine which of the parts of causality that is the outcome of the aggression are relevant. I’m sure you will see that those are fundamentally different issues, because in the latter, the aggression already occurred and that fact cannot be changed by any actor.
On a superficial level, we can reuse Block’s arguments (at least for reference, not necessarily because they are true), e.g. it’s ok to benefit if you are being threatened, but not ok if you are getting paid (on the other hand, how can a private detective get paid then?). Block elsewhere argues that it is permissible to use public services financed by taxes. I forgot his exact reasoning, but at least this demonstrates that the question exists and needs to be dealt with. Nothwithstanding the errors in the arguments in this paragraph, an answer is expected.
My provisional theory is that stolen goods need to be returned (which of course is impossible with non-rival goods), and whatever other issues there are, it is up to the aggressors to fix them. But you cannot prevent non-aggressors from enjoying immaterial benefits, because that would be initiation of aggression. The only way to refute this is to claim that enjoying immaterial benefits is an act of aggression. But then you face the problem of detective not getting paid, so you need to find an additional distinguishing criterion. So the argument is unfinished.
I hope my criticism won’t demean the great work you did on the article. I’m just taking over Jay’s role as advocatus diaboli and combining it with my nitpicking tendencies.
Peter,
“Stephan: I have a problem with the relevance of the article you link.”
I linked it b/c Jay was asking lots of general questions about how you determine X or Y, but without some mooring framework.
“One one hand, it is a very good explanation of how to determine aggression and aggressors. On the other, it only addresses actions that lead to the aggression (i.e. occur before it). We were talking about actions that happen after the aggression, i.e. those that are the outcome, rather than the cause, of the aggression.”
My article was aimed at determining who is responsible for aggression, and also to determine when and what aggression is and when it has occurred. It didn’t focus so much on what to do after. That’s more a theory of justice.
“Just like there is a need to determine which of the parts of causality leading to the aggression are relevant, we need to determine which of the parts of causality that is the outcome of the aggression are relevant. I’m sure you will see that those are fundamentally different issues, because in the latter, the aggression already occurred and that fact cannot be changed by any actor.”
right. Still if you properly characterize the initial act of aggression it helps to clarify who the aggressors are. Then that would help any subsequent analysis of “accessory after the fact.” That whole idea BTW is just a common law idea–it would need to be jsutified in libertarian terms.
“My provisional theory is that stolen goods need to be returned (which of course is impossible with non-rival goods)”
I think this is true — where possible. For fungible things–like money, say–it may not be. In that case the first non-criminal, non-bad-faith possessor should get it, IMO. We can presume the original owner would consent to this–that he would prefer an innocent person have the thing rather than the thief. So that is abiding by his presumed intent.
“But you cannot prevent non-aggressors from enjoying immaterial benefits, because that would be initiation of aggression.”
Of course.
“The only way to refute this is to claim that enjoying immaterial benefits is an act of aggression. But then you face the problem of detective not getting paid, so you need to find an additional distinguishing criterion. So the argument is unfinished.”
Yep
“I hope my criticism won’t demean the great work you did on the article. I’m just taking over Jay’s role as advocatus diaboli and combining it with my nitpicking tendencies.”
No, thisi s good.
Hi guys,
I’ve given it further thought and have made another stab at justifying copyright. Since my approach is slightly different, I decided to write a new post at the bottom of this thread. Have fun debunking it.
Let me try and rephrase this position better. This may sound ridiculous, but it can’t be worse than any of the other pro-IP arguments going around:
Copyright acts like an advertising campaign that informs everyone that there is a strict contractual arrangement between the buyer and seller of the copyrighted item. Hence everyone should know that any copies they find in their possession have only come into existence due to a previous illegal breach of contract. Hence all third parties should be aware that their ‘free’ copy should never have come into existence.
In a way, you might be able to consider third parties who distribute copies of copyrighted works as “accomplices” to the crime.
A “copy” can be defined as any product produced via the forbidden actions stipulated in the buyer/seller contract. (Which would be a very specific and exhaustive list, eg scanning, retyping, direct computer copying if in electronic format, etc, etc, etc)
There is a problem here.
Contracts are only valid if they are about property exchanges. (This is complicated issue and it is hard to argue a separate but related issue here on comments so I advise people to read Rothbard especially “ethics of liberty” on this.)
Thus if someone concedes a valid contract regarding IP he necessarily admits that it is property thus, trespass is possible which makes the third party argument moot.
If there was a case where an side of an IP contract breaks the contract, an leaks the stuff, third party that knowingly uses the IP is also guilty of trespass. The only exception would be if the third party didn’t know the fact the the owner of the IP still held his property rights. Since some of the IP is made free available intentionally by their owners.
“Thus if someone concedes a valid contract regarding IP he necessarily admits that it is property thus, trespass is possible which makes the third party argument moot.”
No. This is flat wrong. Suppose I promise to give you $100 if it rains tomorrow. Does that mean I own tomorrow’s weather? No. It’s just a condition of a unilateral transfer of property. Likewise, I can promise to give you $100 if you tell me a story. That does not mean you or I “own” that story.
Yet another stupid argument destroyed. You guys are like conspiracy theorists: every little argument you come up with we stamp out, but then you just come up with another, unphazed by your previous embarrassing attempt.
Dear Kerem,
we’ve been through this last week, and it ended up with you bailing out, leaving open questions. Now you are back to the beginning.
Furthermore, Rothbard disagrees: ( http://mises.org/rothbard/ethics/sixteen.asp )
[cut]
Until here, everything is fine. Following that, unfortunately, Rothbard makes an error and analyses how restrictions can jump to a third party:
This fails because of the Theory of Claims on Causality. Rothbard falls prey to metaphors and erroneously assumes that a good causally related to another good is “the same”.
“It is determined by the cultural and social background and history, prevailing mythology, norms, and business models.”
I completely respect the feelings of all primitives who aren’t assaulting or insulting me. I would never take a picture of the (possibly imaginary) man who believes I’d be stealing his soul. If a musician who released his music on the internet lost control of its dissemination because of the efforts of a devious or rule-skirting second party, and (the musician) asked me to stop listening to this music, I would do so. I’d stop listening to all of his music, until he grows a brain.
Actually, things like this happen (well, they threaten, via their corporate masters), but all the “artists” I can think of who have done this suck so bad I can’t in good faith use them as examples.
I really want to hear some opinions from these “IP” believers on drug and prostitution “legalization”.
I thought of someone who doesn’t suck, but he’s dead, but his grasping family is alive. For argument’s sake let’s say these primitives instead of threatening me (I’ve heard they were particular hard-ons about all this, but I don’t really know) kindly asked me to throw away the inferior sounding Orbison copies a file-sharer gave me over a decade ago. Would I respect the feelings of these primitives and buy their over-priced (to me, due to all the crap I’ll get with it but don’t want) but official and superior sounding copies? (because I’ve *got* to have a copy of “In Dreams” when I need to listen to “In Dreams”) I’d do it if they gave me his autograph, and I’d cordially thank them. If they politely said “no”, I guess I’d help the bastards get that new swimming pool.
I bought Tommie Frazier’s autograph from him, just because of all the great TV viewing pleasure he gave me and because of my remorse that blood clots caused him to not get into the NFL. We both said “thank you”. The word “charity” never entered my mind on this until the filthy-minded Tibuk put it there.
(stares blankly at the computer screen with puzzled look on face)
Reflections on being called a thief and a Commie. I’m sensitive.
I don’t see you guys winning this thing in this way. I think you may have to tiptoe as delicately with these particular primitives as you do when your wife asks you if her new dress makes her look fat.
I’m pretty sure the Seinfeld clip has nothing at all to do with IP and that the recipes were never even copyrighted. Rather, the soup nazi accidentally left the recipes in an old armoire that he gave to Kramer, which Kramer in turn gave to Elaine. I don’t think anyone on here would argue against a businessman keeping his own business practices secret.
Which raises an altogether separate – but also interesting – legal question. If a businessman accidentally reveals a business secret, does the finder have a right to it?
You don’t have to do anything to get a copyright–only write something original down. Whether the recipes had that sufficient originality is not clear, but if they did, Soup Nazi had a copyright in them, automatically. You don’t lose that by disclosing the underlying information–in fact that is the very purpose of copyright.
As for trade secret: if it’s an actual secret and not made widely public yet the trade secret holder can often get a court to issue an injuction against others who may have received or be about to disclose the information, to preserve its secret status. However, if it gets out then it’s too late; it’s no longer a trade secret.
Ah, thanks for the clarification. I suppose I meant *patented* and not copyrighted.
Another interesting issue is – without IP, no one would disclose the nature of their invention and it may never enter the public domain. I once I heard that Coca Cola was never patented in order to keep the trade secret. Isn’t part of the reason for patent law to bring about public disclosure of an invention or how it works? I guess an important factor is how easily one could decipher the formula. If it were difficult to decipher (as with Coca Cola) one wouldn’t get a patent to begin with. Did I just answer my own question? ;P
“Ah, thanks for the clarification. I suppose I meant *patented* and not copyrighted.”
I actually don’t think you knew then, or know now, what you meant. This is not your fault; IP is arcane. What gets me is why people are in favor of IP and don’t even konw what is the nature of the system they say they are in favor of.
“Another interesting issue is – without IP, no one would disclose the nature of their invention”
NO ONE? Really? wow. Are you sure?
“and it may never enter the public domain.”
Lots of things never enter the public domain. So what.
“I once I heard that Coca Cola was never patented in order to keep the trade secret.”
recipes like this are not patentable.
“Isn’t part of the reason for patent law to bring about public disclosure of an invention or how it works?”
Well, that’s one of the state reasons. What the “real” reason is is another matter. I think it’s to enrich the state and the PTO and the patent bar, etc.
“Lots of things never enter the public domain. So what.”
I’m not necessarily saying it’s good or bad. ‘Just saying it would be an affect of removing IP protection. If inventions don’t enter the public domain, don’t the inventors ALWAYS have a monopoly on them and not just a limited one for the term of the patent?
Effect, not affect.
It’s okay to have a “monopoly” on something by keeping it secret. If you are able to somehow keep an invnetion secret and still profit off of it, so what? But this is relatively rare: usually it’s some process for making something, so that the good you sell does not have the invention embodied in it. BUt even this is not a monopoly because usually someone else re-invents the same process independently. This is in fact why people who would have used trade secrets in a free market instead patent their process. Otherwise the process they have secret might eventually be invented by someone else (and then patented! by that third person!).
Bottom line: in a free market people will keep some things secret, and others they will make public for various reasons: because it’s the price of selling the product, for example. If I have a new mousetrap design, the only way to profit from it is to sell the mousetrap, which also means revealing the design to the world. That’s the tradeoff. That’s life. The patent law is based on the central planning idea (no offense, Rand) that we need more invention disclosure and less trade secret reliance. I guess our benevolent, omniscient central planner know what the right balance is!
“Lots of things never enter the public domain. So what.”
I’m not necessarily saying it’s good or bad. ‘Just saying it would be an affect of removing IP protection. If inventions don’t enter the public domain, don’t the inventors ALWAYS have a monopoly on them and not just a limited one for the term of the patent?
Can someone answer a question for me?
Is there such a thing as doctor-patient confidentiality in the no-IP free market? And why/why not?
I don’t understand. Why would there not be?
Re: Jerry,
First: What would this have to do with IP? How would medical records be construed as intellectual property? You need to define this in order to compare the scenario under a non-IP environment.
I’m not saying medical records are IP, largely because they’re not. I was asking a question and hoping to get some useful words to use in my question.
I design a plane. I give copies of the drawings to person A on the condition that A build one plane and does not make any copies of them. He agrees. A later decides he doesn’t want these drawings cluttering his office and gives them to a third person B. B is bound by no rules, makes copies of the drawings and sells them to people who want to make planes. I’m told on these forums that I’m an idiot for thinking that there is a concrete way, via exchanges of real property, to say B has done anything wrong ie. has violated a copyright. It is just obviously unworkable and I must be a fascist for thinking otherwise.
I see a doctor. He examines me and writes down in my records I have some condition which, for whatever reason, has value to someone (say I’m a star baseball player involved in a bag game). I’m involved in an insurance claim and the insurance company receive a copy of my medical records to pass to their own medics. The owner sees it and this information is so valuable, he winds up the insurance company that day and sells the office to his friend for a pound, saying that it so cheap because he can’t be bothered tidying up before leaving. And, without exchanging a single word directly, his friend gets in the office and sees a copy of that record on the desk. He takes it to the betting shop and makes a bet, then he sells copies of it in a bar, and makes a fortune.
Sure, the insurance guy isn’t going to be trusted again – but he and his friend make enough money, who cares?
The insurance guy, is he obliged to dispose of these records in some specific way? His friend, is he required to ask where this information came form before using it? He sees a bit of paper on a desk which is now inside his property – is he allowed to act on it or not?
Seinfeld? Is that you? It sound like you’re working on some promising new episodes.
Re: Jerry,
Let me put it this way: Who cares what you think. It is obvious you did NOT include in your contract with A a provision for the disposal/return/destruction of the plans.
Moral of the story: Don’t blame A or B for your lack of foresight. And it is not moral nor ethical to call upon the government to do your homework for you under the guise of “I.P.”
This has nothing to do with IP, Jerry. What the friend bought depends on his agreement with his friend. If he bought an office and everything inside, then those records belong to him now
Depends on the contract or agreement between the insurance company and you.
Not if the person is giving the information freely and if the record (the printed paper with the letters and numbers in them) belongs to him. My friends never ask where I got a book when I am giving one to any of them as a gift, even if they pretend to use the book for some purpose.
Why not? If you found a treasure map inside a house you bought, why would you not then be able to go to Home Depot to buy a pick and shovel?
I know this has, in one sense, nothing to do with ip, but I’m making a different point. and I repeat that I’m asking questions ot get someone else’s words, not because i’m a moron who doesn’t know contracts exist. And I want to abandon IP, but i can’t.
“It is obvious you did NOT include in your contract with A a provision for the disposal/return/destruction of the plans.”
Well, it is not obvious to me at all. People don’t spontaneously combust when they break a contract, the can and do break contracts when it is in their interest to do so. If B can make more from breaking his contract than adhering to it then he will.
So when you say
“Depends on the contract or agreement between the insurance company and you.”
well this is wrong. Maybe the insurance guy is happy to be put out of business, lose his licence and even do jail time in return for what he can make by passing the medical records onto his friend. Who cares what was in the contract? That is just another factor in the balance – he looks at his options and acts in his own interest.
My fundamental problem is that this argument made on another thread recently
“As for the alternative copyright protections you describe: companies may try such roundabout and clumsy methods of protecting their product, but they will face at least two problems in doing so. First, even if they contract with clients, there is no legal barrier that prevents third parties from taking action that would today be considered a violation of copyright. If A buys a book from B, but later resells it or gives it away to C, then C is under no obligations to A. Second, competition will destroy this kind of behavior in the market. All of that paperwork would, as you suggest, be a nightmare: and there will be costs associated with it. The firms that attempt to keep up protections will pay for it, and they will likely anger their consumers in the process. Other firms will be able to offer (all else being equal) the same product at a lower cost, and they will be able to do so without annoying their customers. Who do you think will win out in that scenario?”
http://blog.mises.org/13347/the-nonviolent-black-market-in-information/#comment-703721
essentially says that there is no way you can have information on paper that can be copied and keep it from leaking as you can’t contract with third parties. I’ve seen this in a number of guises. But is the leakage of medical and legal records a major problem in society right now? Would it be in a free(er) market? My question is, is the thing he is saying can’t happen actually already happening now?
Re: Jerry,
Read what you wrote originally – you did NOT make a contract with B. You did not tell A to return or destroy the plans either, you just asked him not to make copies of the plans.
And maybe you’re the unluckiest son-of-a-gun to have dealt with such a person.
Maybe. The interest of most human beings is to improve their lot, but again, maybe you won the lottery and found the only person in the world who happens to be a masochist.
The problem here is that you’re conflating two different issues. First of all, if you worry about people breaking contracts hither and thither, why would your worry disappear under a restrictive IP framework?
I cannot tell you that people will not act stupidly under a free market – people are people, after all. However, leaving people to their own devices (instead of restricting them) leaves a greater berth for better approaches to the problem you describe above, not least of all, nurturing a more healthy weariness for the people you deal with, instead of a dangerous naivette encouraged by a paternalistic state.
What I wrote originally was
“I give copies of the drawings to person A on the condition that A build one plane and does not make any copies of them.”
Ok, I didn’t use the word contract but that’s what I meant if that wasn’t clear.
“First of all, if you worry about people breaking contracts hither and thither, why would your worry disappear under a restrictive IP framework?”
Well, I’m not saying it would disappear, I’m saying it would be no different with medical records than it would with copyrights, that medical records are, in some senses, identical. The argument that you can’t enforce a copyright because the author did not make a contract with some third party is exactly like saying you can’t keep medical and legal records secret because the doctor/lawyer did not make a contract with the third party. Yet medical and legal records ARE in general kept secret.
Of course, copyrighted works like novels or engineering drawings would have more value in general that such records and so it would be more profitable to break contracts in those cases so it would be worse. But this doesn’t seem like a watertight argument against copyrights to me – a good one yes, and one I’d probably bet on if pressed but watertight, no way.
I agree with your last paragraph 100%. And I’m suggesting that a system based on contracts between individuals could evolve on the free market and would be something like the medical legal situation described above, where people will only be freely handed copies when they in general will get more value from keeping the contract than breaking it (as you correctly point out the chances of the insurance broker deciding to do this are low, I know this – but so does the person signing the medical release form) and then when someone ends up with something they shouldn’t have, they have to justify it, meaning that those accepting “copyrighted” stuff outside of due process will think twice.
Bodies and processes could evolve on the free market to accomplish this. Now, whether this would happen or not I don’t care. I suggest it _could_ work. And I really don’t understand why it is just OBVIOUS that it couldn’t. It doesn’t seem obvious to me at all.
Ok let’s try this again, but with a different approach.
An author, let’s called him Adam, wishes to sell his book but he only wants official copies to be in circulation.
His intent is to prevent people from duplicating his book.
The means by which he tries to achieve this intent is by selling each copy with a contract whereby the buyer is prohibited from performing actions that duplicate the book.
A careful study of cause and effect demonstrates that if nobody violates the contract, then his intented aim will be fulfilled.
One of the buyers of the book violates the contract and spreads copies out to others.
A third party, who I’ll refer to as Patrick, finds one of these copies in his possession.
Patrick knows that the only reason this copy exists is because of a previous violation of contract.
Patrick knows that Adam’s intent in forming the contract was to prevent free copies from circulating.
Patrick knows, through cause and effect, that had no violation of the contract originally occurred then Adam’s intent would have been realised.
Patrick knows, through cause and effect, that if he were to further duplicate this copy, the result would be in violation of Adam’s intent.
With all this knowledge of the situation, is Patrick allowed to duplicate his copy?
An otherwise peaceful action can be illegal if the actor has knowledge of certain criminal actions that preceded it. The intent to copy is not illegal. However the intent to copy, in knowledge of the contract violations that preceded it, could very well be considered illegal.
With all this knowledge of the situation, is Patrick allowed to duplicate his copy?
Yes.
You’re not allowed to drive your friend to Mexico with the knowledge that your friend just murdered someone.
Your intent with the action is simply to drive your friend to Mexico. A non-violent action. But with the knowledge that your friend just committed murder, cause and effect reveals that your action will result in his escape from those seeking justice.
Similarly, your intent with copying may be peaceful. But once you have the knowledge of the crime that preceded it, cause and effect reveals that that this act violates the intent of the author … an intent that would have been fulfilled had the crime not taken place.
Jay, how dare you rip off and fail to credit Raymond Chandler.
You’re not allowed to drive your friend to Mexico with the knowledge that your friend just murdered someone.
Really? What if your friend murdered someone in Mexico, and you’re taking him to turn himself in?
It’s the not “driving your friend to Mexico” that’s the problem, it’s “aiding your friend in escaping justice”. In the “IP” thing, you’re not aiding in the commission of any crime, or in getting away with it, so the analogy isn’t relevant.
“It’s the not “driving your friend to Mexico” that’s the problem, it’s “aiding your friend in escaping justice”.”
Your intention may not be to aid your friend in escaping justice. Your intention may simply be “driving your friend to Mexico”. But if you have knowledge that they just murdered someone and simple cause and effect logic tells you that your action will aid in his escape, then the action is illegal.
“In the “IP” thing, you’re not aiding in the commission of any crime, or in getting away with it, so the analogy isn’t relevant.”
The example illustrates that an otherwise peaceful action can be a crime if you have knowledge that a preceding crime has taken place.
The situation with the IP case is that the crime is a violation of a contract which was designed with the intention of preventing unauthorised copies from flooding the market. The intention of the author would have been fulfilled if the contract had not been violated. The “crime” in this case is copying after contractually agreeing not to. Hence I think someone can make the case that a third party with full knowledge of the original contract IS aiding in the commision of a crime.
Maybe it’s a weak case, but it’s all I’ve got at the moment.
“The means by which he tries to achieve this intent is by selling each copy with a contract whereby the buyer is prohibited from performing actions that duplicate the book.”
There are two ways to view a contract: 1. it’s not a prohibition. It’s just a title trasnfers, where the buyer agrees to pay damages to the author Adam IF he copies the book. 2. Adam retains ownership of the book and only leases it to , or gives parital ownership of, to the buyer, retaining most rights, so that it’s trespass (a crime) if the buyer uses the physical book still owned by Adam, in ways that Adam does not consent to.
“A careful study of cause and effect demonstrates that if nobody violates the contract, then his intented aim will be fulfilled.”
Unrealistic. First, suppose Adam reads the book in his living room and across the street, a neighbor with a telescope photographs every page. well here the buyer didn’t “duplicate” it, so he is not in breach, and the neighbor has no contract.
Second, no author just wants to stop mere literal duplication; this is why derivative works are included in the copyright statute and why copying covers more than literal duplication but also the general plot, characters, etc. So suppose the Buyer is discussing the plot with someone, or maybe does a book review. this is not duplication. Yet now the info is out there sufficient to enable third party to make a sequel, which would violate copyright, but would not be any contract breach.
Your example is so sterile that at most it achieves something fairly useless for authors–that’s why they insist that the law cover not only literal copying, but duplication more broadly considered as well as derivative rihgts.
I would say that according to interpretation 2 of the contract Patrick knows he holds in his hands property of Adam and that he is not permitted to do X Y and Z wiht it. So he may not duplicate it.
However, this is not a good hypo. A better one is if the Buyer puts the information on the internet. If Patrick sees it then, he is not committing trespass on Adam’s property because he is not handling the book. And it only takes one person to do this and the genie’s out the bottle. Furhter, as I said, all this only goes to literal copying but I assure you the pro-IP fascists do not want this limited right only. It’s not sufficient for their copyright monopoly schemes and they know it.
Further, if Patrick first saw information in the book before being aware of who owned it, then any information he already got, he is free to use, since he did not get this by trespass.
“Unrealistic. First, suppose Adam reads the book in his living room and across the street, a neighbor with a telescope photographs every page. well here the buyer didn’t “duplicate” it, so he is not in breach, and the neighbor has no contract.”
I’m first only looking at the most extreme and simplified case. If I can find a justification for preventing third parties from duplication in a simple case, then and only then will I bother to look at more complicated examples.
Therefore, let’s assume that the contract stipulates that the buyer may only view the book in an enclosed windowless room. Also let’s assume that the contract stipulates that the buyer may not discuss the book with anyone.
“I would say that according to interpretation 2 of the contract Patrick knows he holds in his hands property of Adam and that he is not permitted to do X Y and Z wiht it. So he may not duplicate it.”
It seems I didn’t make the situation clear enough. My apologies. In my example, Patrick holds an illegitimate copy of the book. I’m asking whether he can duplicate this copy … even with full knowledge of the crime committed to bring this copy into existence and full knowledge of the contractual agreement between Adam and the buyers.
“Further, if Patrick first saw information in the book before being aware of who owned it, then any information he already got, he is free to use, since he did not get this by trespass.”
Like I said, Patrick hold an illegitimate copy of the book but he has full knowledge of who the original author is and full knowledge of the original contractual arrangement between Adam and the buyers.
“However, this is not a good hypo.”
Like I said, I’m presenting a very extreme, yet simplified case. I’m trying to discover whether it is at all possible, even in extreme cases, to justify preventing third parties from copying a book.
The problem is that the simple case is not enough, since all you need is one way out and then the game is over.
Ahhh, but this is not a use of the book. This is something the buyer does afterwards. This is an attempt to control his actions by contract. This can only be contract type 1 that I specified above, not contract type 2. That is, the buyer can agree to pay money damages to Adam IF HE discusses it with someone. But technically speaking his discussing it with a third party is not any type of trespass (I discuss this in detail in http://mises.org/journals/jls/17_2/17_2_2.pdf ).So, this is one huge problem. In fact if buyer has a photographic memory there is no way to prohibit him from writing down a copy of the book using his memory. All you can do is impose a fine on him for doing so. It cannot be regarded as trespass. (This is assuming rights are inalienable, as Rothbard said, and that contracts are merely transfer titles to alienable proper rather than “enforceable promises”.)
Okay, I did miss that. I didn’t read closely enough. I thought it was the same copy C1 purchased. Okay: So Adam sells legitimate copy C1 to Buyer B1. Buyer B1 slaps it on a photocopier and makes bootleg copy C2. Patrick finds C2.Okay, there are two ways now to interpret this.
First, let’s assume that the copying was an actual prohibited use of C1. This means it was like a type of trespass. I suppose–and here I’m being generous in your favor–we could assume that Adam and B1 have various subsidiary title transfers, one of which is something like this: “B1 has no right to use Adam’s book C1 except to read it; he may not duplicate it; if B1 attempts to duplicate C1, this is regarded as trespass, and further, B1 hereby transfers to Adam the title to any bootleg copy thereby produced.”
[one problem here is that B1 could use Patrick's property to make C2, so that the title transfer back to Adam would not work. But skip this for now.]
Then B1 is in possession of two physical objects, C1 and C2, each of which is owned by Adam. So then Patrick is in possession of C2, and we resume where I left off earlier just as when Patrick was handling C1.
The other way to interpret it is that by making C2, B1 owes money damages to Adam, but C2 is not Adam’s property. In this case, there are no restrictions whatsoever on Patrick [unless we assume that in addition to money damages, B1 agrees to a type of title transfer whereby he retains ownership of C2 and only grants patrick readin-rights, etc., and/or C2 is transferred in title to Adam... but this is like the above case.]
I think it is: where the phyiscal object is still owned by the author, and the third party is aware of this. In this case his use of the book in ways not permitted by the owner is arguably a trespass, much like if you rent a Hertz car for normal vacation purposes and then you use it in a way not permitted by the rental contract, this is (or should be) viewed as a type of trespass (misuse) of the other’s property.
I have considered this possible contractual mechanism long ago, and concluded it’s flaccid because there are still too many ways for the information pattern to leak. Once this happens there is no more “hook” to ensnare third parties.I think a better contractual scheme would be to try to get a large swath of society contractually part of some copyright regime. For example all the big media companies band together to do something like this: every DVD, CD, you purchase; every MP3 song you download from iTunes or elsewhere; every movie theater ticket you purchase-they all come with a contract that says: “buy buying this I hereby agree to abide by the rules of the Copyright Regime for life, said rules specified in detail at [URL].”
And then at the site, it tries to set up a set of penalties (damages) if you violate the “private copyright” “rights” of any of the Cartel’s content creators. So, imagine this cartel has signed up 100,000 various creators–artists, musicians, actors, film studios, etc. So every Lady GaGa CD, every Sony movie, etc.–they are all part of this. If you want to EVER buy just one of these services or products of a member of the cartel legitimately–say, go to a movie, buy a licensed Teeshirt, buy a DVD, rent from Netflix, download a movie from pay per view, and so on–you have to agree to the Private Copyright Rules. One you do this (let’s assume the validity of such a contract even though I think it is not obvious that it is valid), now you are stuck. Even if you don’t see Star Wars but are aware of the plot, you can’t make a movie based on the general plot or character because you have now agreed that, IF you do this, you automatically trigger a payment of a million dollars damages to George Lucas. Etc.Instead of Walter Block’s Murder Park, it’s like IP World. The problem is you only need a couple of holdouts who just refuse to partake of any of this cartel’s merchants. Then one of them bootlegs the Lady GaGa song, and puts it on the Internet (assuming the ISP has not also become part of this cartel!). Now, consumer who have not yet signed away their IP freedom by signing the cartel’s contract, can use the bootleg stuff instead. You can imagine the amount of bootleg material available like this, growing over time–just as is happening now if you compare Pirate Bay to legal distribution channels. And thus, there would be less incentive for consumers to join the draconian private IP cartel, and they would get less customers and a reverse snowball would happen; it would shrivel and die.Maybe. And/or, the Cartel would have to impose VERY LIGHT and reasonable restrictions in its IP Contract–maybe it lasts for only a year or five (your membership in it); maybe the IP protection lasts only a year or three; maybe it covers only literal infringing, not all these crazy derivative rights; maybe the damages are reasonable and are tantamount to the price you would pay to purchase the song rather than $10,000 per song as is the case now.
If THIS were the fine print, maybe you would be okay with signing it since it’s minimal and reasonable, temporary etc. Not draconian.I would view this as analogous to the media companies now, lowering the price of song downloads to a nickel, movie downloads to a buck, book downloads to fifty cents, and so on — to rates at which they make about the same profit per copy sold as they did in the past with physical media, assuming increased volume because of the lower price — in effect passing on the savings of the omitted physical media cost to the consumer. If media companies did this now, it would gut the need for piracy. But they are too stupid and dinosaur like to do this. So they feed piracy.
Anyway, I do imagine that various cartels like this would be attempted in a free market and they should be permitted to try–antitrust law should not stop any such collusion, of course. I just don’t think it would work, in the end, to set up any kind of society-wide draconian IP system like we have now. It would have to be limited in reach, time, duration, scope, and penalty, to have a chance of having any traction. but if it was, it could possibly form a little bubble where the content companies make some money off of the set of consumers they have brought into this bubble. I just think it’s better to do it by the power of attraction, like google does with its ecosystem or like Apple does with its ecosystem, say, than by strong arm tactics.
I’ve thought about all this a long time but haven’t written much about it yet since this is so speculative. Thoughts?
Hi Stephan,
Sorry I’ve been away for a couple of weeks and this has been my first chance to reply.
You’ve made some fascinating points. I definitely think more should be written on this sort of stuff. At the very least it will give borderline pro-IP libertarians piece of mind that creators still have ways to charge monopoly prices for their work … if only for a short while.
The link you provided me was great. Thank you.
I especially like the idea that “giving” an object to someone can be thought of as simply abandoning the object in a manner which gives that person “first” possession. I’ve never thought about it in that way before but it certainly sits well with me at the moment. The idea that homesteading is the process behind all title transfers is simply brilliant.
I definitely have to give this subject a lot more thought.
Thanks again
Thanks Jay. I am not aware of anyone else making this contractual-title by “directed abandonment” point. Glad you like it–most people don’t seem to get it or see its significance. It has implications, e.g. for inalienability, as I argue there and in other pieces, and for other things as we..
IMO this as a major libertarian breakthrough.
Those people with objections to the concept of self-ownership (such as Bala) should be made aware of this abandonment theory of title transfer.
It is impossible to abandon your body and therefore clearly impossible to transfer title to it. But “bits” of your body can be abandoned, such as kidneys, blood, bone marrow, etc. Therefore it is possible to transfer title to detachable body parts.
The more I think about this theory, the more I like it.
Have you come across any solid arguments against it yet?
Jay, — I’d say you can abandon parts of your body once they are detached; but you cannot obligation yourself to do so before hand.
I know of no objections to it. Most people don’t even seem to understnad it, though it’s simple enough.
Walter Block and I disagree on the implications of it, for example. I think this way of looking at it shows exalty why there is inalienability in the body. A small minority of libetarinas think the body is alienable: you can voluntarily sell yourself into slavery, say. Here is their reasoning: If you own something, you can sell it, right? And you own your body. THerefore…
The problem is they are leaping to the assumption that ownership implies the “rihgt to sell.” It does NOT. Ownership only implies the RIGHT TO CONTROL. Not the right to NOT control, or the “meta”-right to get RID of the right to control. If anything the right of ownership means that if you say NO then it means NO since you are the owner, even if you previously said something otherwise.
Realizing how body and alienable resource rights come to be owned (see my How We come To Own Ourselves) differently, you can see the basic ownership element “right to control”, *when applied to homesteaded things*, *implies* a power to sell *because* things you acquire can be abandoned.
However, this does not work for the body since “you” did not “acquire” it. To acquire something you have to already exist and be a body-owner. This is one reason I am leery of overly-imprecise and metaphorical statements like “humans are self-homesteaders”. Literally speaking this makes no sense.
So, basically: the right to control, when applied to an acquired thing, an combined with the natural power to undo the acquisition (abandon it), leads to the practical power to sell or give it away. But the right to control, when applied to one’s person, does not. So “right to sell” is not a direct part of or implication of ownership. It requires ownership plus something else–the nature of the owned thing being an acquired external resource.
Block and others are so used to the “right to sell” existing, since the most common cases of trade all involve alienable things such as money ,food, produced goods. So you get used to automatically assuming “right to sell” is an inherent aspect of ownership. It’s not.
I think you’ve hit the nail on the head.
The concept of “selling” is not a fundamental one. I think this is where some people are falling down.
To have a “right to sell” first requires that you have a “right to abandon”.
So you need to be able to abandon your body in order to be able to “sell” your body.
The only way to abandon your body (at present) is to end your life. You do have the right to abandon your body, granting possession of your dead body to another. But it is impossible to abandon your body while you’re still alive.
So you’ve demonstrated that selling your living body is a contradiction because abandoning your living body is impossible.
Nice.
Yeah, and has anybody noticed that Kramer is pretty much an Agorist?
I was trying to follow Mark, Stephen, and Peter’s argument, but its late, I have been drinking, and I got bored. All I have to say, is that if it does not have mass, it cannot be owned. Done.
You know, there’s a story (in Plutarch) about a man in ancient Egypt who wanted a particular prostitute, but she was too expensive. One night he dreamed that he had sex with her, and after that he no longer wanted her. In perhaps the first IP suit in history, she sued for payment. The Pharaoh, as judge in the case, ordered the man to bring the amount of money into court in an urn and wave it about a bit: as the man got the “shadow” of the woman, she got the shadow of his money! IMO, perfect justice! I wonder if the pro-IP crowd would go for that
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