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Source link: http://archive.mises.org/15290/copyright-promotes-the-progress-of-arts/

Copyright Promotes the Progress of Arts…

January 11, 2011 by

…except when it doesn’t. Andew Albanese reports for Publishers Weekly on a story I’ve previously blogged about:

It appears that Holden Caulfield will remain under tight control of the Salinger estate—at least in North America. In early December, the estate of J.D. Salinger and Swedish author and publisher Fredrik Colting entered into a consent agreement to end the copyright battle over Colting’s book 60 Years Later: Coming Through the Rye, the so-called “unauthorized sequel to The Catcher in the Rye,” that would bar the book’s publication the U.S.

According to a settlement agreement, seen by PW, Colting is has agreed not to publish or otherwise distribute the book, e-book, or any other editions of 60 Years Later in the U.S. or Canada until The Catcher in the Rye enters the public domain. Notably, however, Colting is free to sell the book in other international territories without fear of interference, and a source has told PW that book rights have already been sold in as many as a half-dozen territories, with the settlement documents included as proof that the Salinger Estate will not sue. In addition, the settlement agreement bars Colting from using the title “Coming through the Rye”; forbids him from dedicating the book to Salinger; and would prohibit Colting or any publisher of the book from referring to The Catcher in the Rye, Salinger, the book being “banned” by Salinger, or from using the litigation to promote the book. The agreement is final and terms are confidential. In a statement to PW, Colting said, “We’ve come to an agreement with the Salinger trust but I’m afraid I can’t go into any specifics. Let’s just say that the book will be published in a number of countries this year and I’m very pleased with that.”

The settlement comes after a win for Colting at the Second Circuit Court of Appeals, which, in September, 2009, vacated the injunction that barred publication of 60 Years Later in the U.S. (it has been published in the U.K. and Sweden), and ordered the case to proceed to trial. The case had attracted worldwide attention, not only from Salinger-watchers, but from copyright experts who noted the vacated District Court ruling was the first to extend copyright protection to a single literary character from a lone work, and from publishers and First Amendment groups, who protested the “book banning” nature of the preliminary injunction.

My favorite part of this is that Colting is banned from even dedicating his book to Salinger. That’s a new one.

{ 76 comments }

iawai January 11, 2011 at 1:00 pm

Next comes the ICE inspections of any imported libraries to make sure that none of these copies are “smuggled” into the US, as a “necessary and proper” enforcement of the “legitimate government interest” in this copyright censorship.

I don’t understand how people can support Intellectual Privilege law, or government law in general given the absurdities that occur everyday. After all, if this book wasn’t banned, J.D. Salinger wouldn’t have written Catcher in the Rye in the first place, right?

Jim January 11, 2011 at 1:24 pm

How bizarre. This book would have been totally ignored by almost everybody if the estate of Salinger hadn’t made any fuss over it. It’s as if the very possession of the ability of the estate to force Colting to do something against his will, destroy the work of another to the benefit of no one, and to say “MINE” the whole world, was more important than discouraging others from reading Colting’s book. That’s not logical, and the goal wasn’t even censorship – that’s just a power trip. Seems that Orwell was quite right about power being an end, not a means.

Silas Barta January 11, 2011 at 2:07 pm

I think you neglected the worst part of this: that if you voice any support IP whatsoever, you are obligated to defend its application in this manner. Yikes, I think that you means _you_ have to defend it too!

Peter Surda January 11, 2011 at 2:47 pm

How predictable. While there is no logical need for you to support the monstrosities of current IP, there is a logical necessity for you to explain why they are not in accordance with your “theory”. Does your opposition to the example mentioned mean that Colting is not instantiating the patterns created by Salinger? How does one determine that? Meditate and count the number of sheep? Odd = instantiating, even = not instantiating?

Silas Barta January 11, 2011 at 3:05 pm

Salinger’s works aren’t being copied — works inspired by them are, with that work’s author’s approval.

sweatervest January 11, 2011 at 3:24 pm

You are taking the definition of “copy” for granted, when your whole thesis depends critically on specifying exactly what it means to “copy”.

One could make the case that producing a derivative work is a form of “copying”. If you disagree with this, then at which point does it stop being copying? What if I take a book, reprint every letter exactly, and then change one word in the entire book? Is that a copy?

What if I change two words? Three? A paragraph? A chapter? What if I don’t reprint the words but paraphrase the entire story, so it is effectively the same plot, setting, characters, etc. but not verbatim? What if I change one of the character’s names, or two, or modify the plot slightly?

So many questions, none of which have answers.

And in anticipation of your response, no this problem does not plague physical property, as the very existence of the concept of property is to provide objective, unambiguous questions as to what behavior is just and what is unjust. Pointing out that drawing homesteading boundaries is difficult in certain situations (like in homesteading a piece of a river) is entirely off-topic, because the questions is about the boundary between ownable and not ownable, not the boundary that defines what actions acquire ownership of what. There is a clean line between ownable and not ownable in physical property: no one is arguing over whether air is really a free good, or whether land is really an ownable good. Yet people argue constantly over whether a single note is a really a “free idea”, or whether a whole song is really a “ownable idea”.

Stephan Kinsella January 11, 2011 at 3:43 pm

Yes, this is called “derivative works,” a part of the copyright bundle of rights. I guess you are selectively excising that from the set of artificial rights you choose to argumentatively defend? Not surprised.

Peter Surda January 11, 2011 at 4:07 pm

Stephan,

the difference between “derivative” and “copy” is that of an interpretation. It’s not a scientific distinction. I already posted about it in the past. Both are a mix of causality and similarity, i.e. externality and a substitute.

Besides, Silas now inadvertently allowed a peek at his theory. By saying that “copying” is bad, but “inspiration” is ok, he admitted that he does not consider causality a sufficient criterion for “IP”, but a substantial similarity is also necessary. But that invalidates some of his other arguments, which are based on making implications from the assumption of a causal relationship, e.g. the moral argument. It also does not explain the concept of ownership of EM frequencies, which do not require any causal relationship for a violation at all.

So, he needs to simultaneously claim that causality is a defining aspect of IP (copying), as well as it is not (inspiring). I don’t think he explicitly said this, but I think he also supports independent discovery as a valid method of obtaining rights. If that’s correct, he also needs to simultaneously claim that patterns are a defining aspect of IP (EM frequencies), as well as that they are not (independent discovery). In other words, he needs to contradict himself.

Obviously, I don’t need to explain to you that IP requires the holding of contradictory assumptions, you know it much better than me :-). I’m just pointing out that Silas just shot himself in the foot.

Stephan Kinsella January 11, 2011 at 4:17 pm

Agreed. Great point. Silas does this often, as do all intellectual monopolists. They usually have no idea what they are even talking about. “it is a tale told by an idiot, full of sound and fury, signifying nothing.”

Silas Barta January 11, 2011 at 5:26 pm

By saying that “copying” is bad, but “inspiration” is ok, he admitted that he does not consider causality a sufficient criterion for “IP”, but a substantial similarity is also necessary. But that invalidates some of his other arguments, which are based on making implications from the assumption of a causal relationship, e.g. the moral argument.

Stephan_Kinsella, do you actually understand this stuff, or do you just check the “agrees with me about IP” box, and then smile and nod?

And where have I argued for copyright that would give Salinger exclusivity in these kinds of derivative works? I’ve stated clearly what my basis for supporting IP is — the fact that the creator is the reason the work exists. In cases where that isn’t true, I don’t support it. Notice that IP proponents don’t actually address this (very common) grounding of IP rights — they just assume away the problem of whether or not a given work would have existed if not for the reasonable expectation of exclusivity in the instantiation of the work, which makes a messy world ~so~ much easier to deal. Just wave your magic wand and decree that people can do all the things that you say socialism can’t, just as long as it’s in the realm of creative works!

(Many of them, like Stephan_Kinsella, don’t even bother to distinguish intellectual works from intellectual property, referring to all of it as “IP”, and don’t argue as if they understand that a difference even exists.)

By the way, if it matters, S.M._Oliva is symphetic to copyright, and finds it odd that this post is taken as an argument against copyright as such. Did I just blow your mind???

Heirs of Shakespeare January 11, 2011 at 5:27 pm

“it is a tale told by an idiot, full of sound and fury, signifying nothing.”

You now owe us$10,000.

Being property, IP rights can’t expire, don’t you know!

And I don’t mean that deeply-flawed IP legislation written by faulty mortals with no appreciation for the proper theory, but rather the parameters of the One True IP, in its purest and noblest form, as Mr. Barta here would undoubtedly reveal to you, if he ever had a moment’s rest from his tireless task of correcting everyone around him.

Silas Barta January 11, 2011 at 5:30 pm

@Heirs_of_Shakespeare: You now owe me $10,000.

Being property, land rights can’t expire, don’t you know! So I get $10,000 from the time you grazed my land with your left foot when passing by.

sweatervest January 11, 2011 at 6:49 pm

“I’ve stated clearly what my basis for supporting IP is — the fact that the creator is the reason the work exists.”

You are not the reason your body came into existence. Under your criteria for ownership, you do not own your body and cannot do anything.

Stephan Kinsella January 11, 2011 at 7:47 pm

Silas: “I’ve stated clearly what my basis for supporting IP is — the fact that the creator is the reason the work exists.”

But this is not a reason. If I have a child I am “the reason” the things he produces exist. Does that mean I own him, and them? I mean this is incredibly amateur and inept.

further: patent law HAS NOTHING TO DO WITH COPYING. See Common Misconceptions about Plagiarism and Patents: A Call for an Independent Inventor Defense. YOu are entitled to a patent even if someone else independently invents it even before you did, or after you did, or many others were about to invent it (in which case the patentee is not “the reason” this thing now exists). So is Silas in favor of making patent law like copyright law–making “copying” an element of the cause of action, and adding an independent and prior invention defense? Because this would basically gut patent law.

And is silas in favor of getting rid of the derivative works part of the bundle of rights that is copyright law? Because that would largely gut copyright law.

Does Silas has any clue whatsoever as to what he is in favor of? Other than that he doesn’t want the law he pretends not to favor repealed.

Beefcake the Mighty January 11, 2011 at 8:43 pm

“I’ve stated clearly what my basis for supporting IP is — the fact that the creator is the reason the work exists. ”

To add to Stephan’s comments on this weak reasoning of Silas: the creator is not the only reason the work exists. Any creation requires the use of physical resources, factors of production applied to (previously uncreated) raw materials. The question then is: why is a creator justified in using *these* means? This must also fit into Silas’ property rights theory. But we know he doesn’t really have a theory, so I won’t hold my breath here.

Beefcake the Mighty January 11, 2011 at 8:50 pm

I could also point out, the creator is not the only reason *copies* exist either, as these too require physical factors of production, the valid claim on which by the creator has never been established by Silas (he’s never even attempted to do so).

Peter Surda January 12, 2011 at 4:20 am

Silas,

your confused reply demonstrates that you have no clue what you are talking about, after all these years.

And where have I argued for copyright that would give Salinger exclusivity in these kinds of derivative works?

Where have you not argued for that?

I’ve stated clearly what my basis for supporting IP is — the fact that the creator is the reason the work exists. In cases where that isn’t true, I don’t support it.

So, Salinger’s Catcher in the Rye is not the reason why Colting’s Coming Through the Rye exist? You use causality to define IP, but then immediately deny it. Furthermore, EM rights violations do not require any causality at all, and you still support them. So, you contradict yourself again. You cannot support EM for the same reason you support IP, because it does not involve “creator being the reason that the work exists”.

Notice that IP proponents don’t actually address this (very common) grounding of IP rights

On the contrary. We addressed it like a zillion times. Stephan refers to it the creationist theory of homesteading. I refer to it as a labour theory of value. But regardless of those issues, you are not even applying it consistently, so pointing out the economic errors in that claim is redundant. After all these years, you still are oblivious to elementrary logical errors, and attempt to build grand schemes without a foundation.

— they just assume away the problem of whether or not a given work would have existed if not for the reasonable expectation of exclusivity in the instantiation of the work.

(emphasis added)
Now, you make a new argument. You pulled “instatiation” (patterns) out of your ass. Patterns (= similarity) is a condition orthogonal to causality. You do not explain what patterns are, how to define instantiation of them and how to define the scope of homesteading and if causality is a necessary condition. For some unexplicable reason, you don’t consider re-using the phrase “in the rye” together with a character named “Holden Caulfield” an instantiation of a pattern originated by a guy who used the same pattern half a century ago.

The confused nonsensical self-contradictory approach is tiresome. I suspect that you will ignore my reply, and then a couple of months later, pretend it never happened and repeat your nonsense.

Peter Surda January 12, 2011 at 6:06 am

Stephan,

And is silas in favor of getting rid of the derivative works part of the bundle of rights that is copyright law? Because that would largely gut copyright law.

Yea, imagine that, making a translation or even encoding data using a different codec would be permitted. And I’m not even touching the subject of the distinction between written and spoken text.

What now Silas, are you going to squirm some more? Or cowardly run away from the debate?

Silas Barta January 12, 2011 at 10:03 am

This is getting tiresome.

@Stephan_Kinsella:

But this is not a reason. If I have a child I am “the reason” the things he produces exist. Does that mean I own him, and them? I mean this is incredibly amateur and inept.

Not really — you, plus the things the child did are the reason the things exist, which complicates the analysis. In any case, we could find similar (and worse) problems with all the rights you violating in your children by using their bodies in contravention of their homesteading of their bodies. Oops.

further: patent law HAS NOTHING TO DO WITH COPYING.

The discussion was about copyright, and patents certainly *do* have “something* to do with copying.

See Common Misconceptions about Plagiarism and Patents: A Call for an Independent Inventor Defense. YOu are entitled to a patent even if someone else independently invents it even before you did, or after you did, or many others were about to invent it (in which case the patentee is not “the reason” this thing now exists). So is Silas in favor of making patent law like copyright law–making “copying” an element of the cause of action, and adding an independent and prior invention defense? Because this would basically gut patent law.

Wow, so you mean the IP rights I support are different from the ones that exist under current law??? OMG! Next you’re going to tell me that the private property rights you support are different from the ones the state recognizes! That *totally* changes things. Not.

In any case, this would not “gut” patent law: the essential aspect of patent law that IP proponents support is that it allows someone who created an idea to be able to exclude (from instantiation of that idea) those who would not otherwise have known the idea. The overwhelming majority of instantiations of patented inventions (where the patent is not ridiculous) are used by people who could not and did not independently invent it.

Certainly, *court cases* are dominated by people who use the independent inventor defense, because they (rightly) think this proves obviousness. But that’s not the right set to look at: what you’re seeing is the result of most people not bothering to *copy* precisely because they know they’d be incontravention of a patent!

This is like Max Chiz’s ridiculous argument that because big publishers don’t flagrantly violate copyrights of other publishers, that must mean their actions are unaffected by copyright and they must not want to print those books anyway.

Learn2selection effects.

Dave Narby January 12, 2011 at 11:06 am

“Being property, IP rights can’t expire, don’t you know!”

Being IP, by definition, those rights automatically expire.

Do you lie as a matter of course? Or perhaps I should give you the benefit of the doubt that you’re just staggeringly ignorant about this subject….

Peter Surda January 12, 2011 at 11:25 am

Silas,

indeed this is getting tiresome. Mainly because you do not have a coherent theory, yet are convinced to the utmost that you are nevertheless right.

you, plus the things the child did are the reason the things exist, which complicates the analysis.

Yes. Just like the fact that the author plus the things the “pirate” did are the reason why “unauthorised” copies exist.

Wow, so you mean the IP rights I support are different from the ones that exist under current law??? OMG!

You claim that you don’t like A, but prefer B, but do not explain what B is! OMG!

the essential aspect of patent law that IP proponents support is that it allows someone who created an idea to be able to exclude (from instantiation of that idea) those who would not otherwise have known the idea.

That’s not what patent does. It does not require causality. If you want a different patent that the one that exists in current law, then what is it? You do not explain. I’ll skip over the fact that you’re essentially reformulating the labour theory of value, because before handling the economic errors you need to fix your logical errors first.

Furthermore, you do not explain why you use the same justification for EM spectrum “ownership”, which does not require causality at all (i.e. it is irrelevant whether the violator knows if someone else is using the frequency).

The overwhelming majority of instantiations of patented inventions (where the patent is not ridiculous) are used by people who could not and did not independently invent it.

That is valid for non-patented and non-patentable inventions too. So what’s the difference? Both morally and economically? By the way, how do you distinguish between ridiculous and non-ridiculous patents apart from eliminating the concept of independent discovery?

But that’s not the right set to look at: what you’re seeing is the result of most people not bothering to *copy* precisely because they know they’d be incontravention of a patent!

There is an easy disproval of this. Patent systems are (mostly) country-specific, both in definition and in validity. A company owning a patent in US cannot sue a French manufacturer, unless they export to US or the US company has a patent issued by either French or European patent office. If your claim was true, we would be seeing a lot more international “pirates” than we do.

You’re a complete fraud. You don’t know anything either about the current laws, nor do you have a theory behind your claims, nor do you have an explanation about what the consequence of your theory should be. It’s ridiculous that I spend so much time yet you cowardly refuse to argue.

Stephan Kinsella January 12, 2011 at 2:47 pm

Silas:

This is getting tiresome.

you got tiresome long ago. the only reason people respond is for the edification of lurkers. you’re like a museum piece people keep around to show errors of past ways.

you, plus the things the child did are the reason the things exist, which complicates the analysis.

indeed! hahahha. you are not serious, really.

Wow, so you mean the IP rights I support are different from the ones that exist under current law???

Nobody knows what IP you ‘support,” you are nothing but a gadfly. You reallly have no idea what you are even talkng about.

the essential aspect of patent law that IP proponents support is that it allows someone who created an idea to be able to exclude (from instantiation of that idea) those who would not otherwise have known the idea.

but since most inventions would come anyway… this means a null set basically? good.

The overwhelming majority of instantiations of patented inventions (where the patent is not ridiculous) are used by people who could not and did not independently invent it.

how in the hell do you know this?

Certainly, *court cases* are dominated by people who use the independent inventor defense,

not so, since THERE IS NO SUCH DEFENSE YOU IDIOT.

because they (rightly) think this proves obviousness. But that’s not the right set to look at: what you’re seeing is the result of most people not bothering to *copy* precisely because they know they’d be incontravention of a patent!

You are so clueless. Most times you come up with a product and then later on someone says hey you infringed patent no 8,732,123 that you never saw.

Stephan Kinsella January 12, 2011 at 2:52 pm

Knave Darby: ““Being property, IP rights can’t expire, don’t you know!”

Being IP, by definition, those rights automatically expire.

Do you lie as a matter of course? Or perhaps I should give you the benefit of the doubt that you’re just staggeringly ignorant about this subject….”

it’s not a lie; he’s saying that if it’s really a property right it ought not expire. Helloooo

Tom Bell points this out decisively in his demonstration that IP was never viewed as a natural right. http://c4sif.org/2010/12/ip-rights-as-monopolistic-grants-to-overcome-the-public-goods-problem/#identifier_1_661

Silas Barta January 12, 2011 at 3:01 pm

Just to show what I have to put up with when arguing with Stephan_Kinsella, check out what he does here: In the context of showing why allowing an independent invention defense is not “gutting” patents, we have this exchange:

Certainly, *court cases* are dominated by people who use the independent inventor defense,

not so, since THERE IS NO SUCH DEFENSE YOU IDIOT.

Unfortunately, he didn’t realize that:

1) The whole point was to show that he’s looking at the wrong set when determining what is “the bulk” of patent law. So whether it’s a valid defense or not is moot: the point is that you have to compare to the cases of people who *could* produce something but don’t because it would be obvious it would infringe a (non-obvious) patent. You can’t just do what Stephan_Kinsella is doing and say, “Hey, look at all these public cases where someone was sued for patent infringement even though they never heard of the patent.”

2) Had he read the rest of the very sentence he was replying to, he would have seen that even so, my reply showed how it could contribute to currently-valid defense and thus would distort Stephan_Kinsella’s estimations anyway:

because they (rightly) think this proves obviousness.

You ever get the feeling someone’s given up and is just hanging on for the fame?

Silas Barta January 12, 2011 at 3:18 pm

I guess Tom Bell must have missed how Spooner viewed copyright as a natural right.

… not that anyone would base their support for a right on whether “it was historically viewed as a natural right”. I mean, that’s a pretty stupid standard, don’t you think, Stephan_Kinsella?

PK January 12, 2011 at 3:30 pm

“Just to show what I have to put up with when arguing with Stephan_Kinsella …”

Waaaaaaahhhhh!! Poor meeeee!! Somebody take pity on meeeeeeeeeeee…

Damn, you are not only unbelievably whiny, but the most self-absorbed person I have ever seen on this site. Whatever you say always ends up being all about you.

Grow up, dude. The world is does not revolve around you. Not every comment needs to be a pathetic gripe about how no one respects your brilliance. Not every conversation needs to be about how under-appreciated you are.

If you are confused and frustrated about why you haven’t been given your due deference, it’s because you’re wrong, or at least you haven’t bothered to explain why you are right. You are creating the outcome you so loudly and persistently decry. You are asking for the negative, argumentative responses you get. Your own behavior is the reason no one listens to you, agrees with you, or even takes you seriously. The problem is with you, not everyone else.

Silas Barta January 12, 2011 at 3:42 pm

@PK: I’m pretty sure your theory can’t explain why Stephan_Kinsella doesn’t read a full sentence of mine before responding to it, but if you can marshall a little more evidence, I’ll give it some more consideration.

Silas Barta January 11, 2011 at 5:18 pm

Sure — the current system labeled “copyright” prohibits creative works that relate too much to an existing work. Likewise, the current system called “private property” allows for eminent domain. I don’t support either.

Does that mean you are selelctive excising eminent domain from the set of state-enforced property rights you choose to argumentatively defend?

Or does it mean that *your* use of “private property” differs from the “private property” the state is enforcing?

(J/K, you don’t have to take the topic seriously, I’m just messin’ with ya.)

sweatervest January 11, 2011 at 7:02 pm

“Sure — the current system labeled “copyright” prohibits creative works that relate too much to an existing work. Likewise, the current system called “private property” allows for eminent domain. I don’t support either.”

Eminent domain is a trespass on private property because it is a claim to ownership without homesteading or trading. Anybody claiming that eminent domain is a part of “private property” is dead wrong, just as wrong as anyone claiming that intellectual property is a part of “private property”. Both eminent domain and IP laws are breaches on private property by the state.

Again, there exists a sound theory of private property (see Hoppe). Where is the sound theory of intellectual property? You seem to have been driven to admit that you don’t even need to take this task up.

“Does that mean you are selelctive excising eminent domain from the set of state-enforced property rights you choose to argumentatively defend?”

Unbelievable, dude. This logic train is absurd. When did we begin our theory of property rights by examining the laws in the United States? You do realize you are talking mostly to anarchists, right? You are being very tricky here, trying to suggest that the only theory of private property put forth is one by a government. My rejection of eminent domain is for the exact same reason I reject intellectual property: they are both incompatible with homesteading or trading private property!

“Or does it mean that *your* use of “private property” differs from the “private property” the state is enforcing?”

Duhhh, Silas!! Dear god we have said this so many times!! Have you ever read “The Ethics of Liberty” of “The Economics and Ethics of Private Property?”

Now it’s your turn. Rothbard and Hoppe (following Mises) saved the concept of private property from its bastardizations by the state. It’s your turn to present even the tiniest bit of property rights theory to save intellectual property. A sound theory of property rights *has* been advanced. This is not the case with IP, and in fact the sound theory of property rights assures that one never will. Your stubborn and systematic reluctance to even attempt to go on the defensive and present your own understanding of property rights only illustrates this impossibility!

You have not made any attempt to advance your own theory of property rights, ignoring our criteria of rivalrous use that we have stated over and over. All you keep doing is trying to show that private property theory is as faulty as intellectual property theory, and that apparently means it’s okay to accept both of them. All the attempts to discredit private property have failed, and no attempt to reconcile IP has been made.

james b. longacre January 11, 2011 at 10:40 pm

“patent law HAS NOTHING TO DO WITH COPYING.”

” After all, NTP had a successful patent suit against Research in Motion’s popular BlackBerry…….”
http://are.berkeley.edu/courses/EEP143/fall2007/News/More%20on%20iPhone%20suit.htm

if someone gets a succesful patent suit , a patent infringement iow, was anything copied??

Stephan Kinsella January 11, 2011 at 11:15 pm

Longacre: “if someone gets a succesful patent suit , a patent infringement iow, was anything copied??”

I don’t understand your question. I gave a link to a post that explains all this in detail.

Peter Surda January 12, 2011 at 4:27 am

sweatervest

Where is the sound theory of intellectual property?

I have come to the conclusion that there isn’t one, even an unsound. Despite repeated challenges, Silas has not, to date, been able to even formulate it in any way.

Colin Phillips January 12, 2011 at 12:01 pm

“Sure — the current system labeled “copyright” prohibits creative works that relate too much to an existing work. Likewise, the current system called “private property” allows for eminent domain”

The difference is, the concept of private property would still work if eminent domain were removed.

When you remove the parts of “the current system labeled ‘copyright’” which directly lead to the negative consequences which have been amply documented, there is nothing left over – the current system labeled copyright *is* that system of abuses.

If, however, you believe you have an alternative to the current system labeled copyright which does not directly lead to these abuses, feel free to outline it at any stage.

Walt D. January 11, 2011 at 5:45 pm

“this is called “derivative works,” ”
Oops, here come Barney Frank, Chris Dodd and the SEC to regulate it! :-)

james b. longacre January 11, 2011 at 11:58 pm

“patent law HAS NOTHING TO DO WITH COPYING.”

when someone has a successful patent suit is it succesful because they showed that something was copied in some way??

Stephan Kinsella January 12, 2011 at 12:27 am

Longacre: ““patent law HAS NOTHING TO DO WITH COPYING.”

when someone has a successful patent suit is it succesful because they showed that something was copied in some way??”

No. This is why I said it has nothing to do with copying. This is why I provided a link explaining this.

It has nothing to do with copying. You don’t need to prove copying to prove patent infringement. I am not sure how I can be any clearer.

Anthony January 11, 2011 at 3:48 pm

This is very vague, Silas.

Is making derivative copies ok in your model? with or without permission? What would your vision of IP do in this particular case?

Silas Barta January 11, 2011 at 5:28 pm

Your second question is redundant given the first — whether it’s okay *means* whether your need permission, genius. :-P

sweatervest January 11, 2011 at 7:03 pm

So you asked permission from the first person who ever used any of the words or letters you just used to make that post, right?

Wait a minute? What words and letters did you use to ask permission!?

Anthony January 11, 2011 at 8:55 pm

You still didn’t answer the question. If you are going to make a snide remark about part of the question being redundant you should least answer it. After all, you seem to think I asked twice.

james b. longacre January 15, 2011 at 12:53 pm

“No. This is why I said it has nothing to do with copying. This is why I provided a link explaining this.

It has nothing to do with copying. You don’t need to prove copying to prove patent infringement. I am not sure how I can be any clearer.”

you dont seem clear at all. and im not chasing you false links down.

when a patent has been infringed has a ‘patented item’ been what??? copied or reproduced???

do you just mean that if a good is made that adheres ‘a patent only on paper’ then it isnt copying??? that to me seems like a copy…a copy of a plan or process and that it has everything to do with copies.

nate-m January 15, 2011 at 1:07 pm

””when a patent has been infringed has a ‘patented item’ been what??? copied or reproduced???”””

Neither is required.

A patent is a document that you file with the USA government (or whatever your state is if your foreign) were you describe your invention/process. You to go the patent clerks, pay them money, the approve it, and then it gets added to the patent database.In exchange for this you are given a monopoly right to sue anybody over use of other inventions that would do what is described in your patent.

You don’t need to actually produce anything beyond the patent document. You don’t need to make any products, sell anything, or license anything for somebody else to infringe on your patent.

For a third party to infringe on your patent they do not need to know you, your company, or your product. They don’t need to sit down and copy it, examine it, or anything like that. They don’t need to see your patent or know the patent even exists. They could be utterly ignorant of your idea, your inventions, and the entire patent system. They could be living in utter isolation.If they have a something that does what is described in your patent then they liable. That’s it.

That is all that is required. Copying does not even enter into the calculations. Ignorance and independent invention is utterly irrelevant.

THAT is why copying is irrelevant. Reproduction is irrelevant. You do what is described in a patent then your liable.

If the infringement on a patent is on purpose then that may treble the damages awarded to the patent holder, but that is just in the awarding the damages and does not affect whether or not your liable.

Peter Surda January 11, 2011 at 3:51 pm

I get it, so you counted eight sheep.

sweatervest January 11, 2011 at 3:16 pm

Silas you attempt to smear us every time with this old tiring argument.

I will attempt, once again, to explain to you why this is wrong.

Pointing out the silliness of current copyright laws is not the argument. The argument is property rights theory. These things are *illustrations* of the vagueness and arbitrariness of IP laws.

It sounds like you would agree that this is a silly law to enforce. Okay, so what IP laws wouldn’t be silly? Do they even exist? Copyrighting derivative works is silly, but copyrighting an “original” work is not? How do you explain this? Where is that line drawn?

james b. longacre January 11, 2011 at 10:34 pm

“Okay, so what IP laws wouldn’t be silly? ” would those ultimatly be a contract law that deal with patterns in processes and real goods???

Beefcake the Mighty January 11, 2011 at 10:41 pm
Anthony January 11, 2011 at 11:43 pm

Good idea, james. Since you think that contract law is sufficient then there is absolutely no need for other IP laws. It looks like we finally agree. Of course, contracts only bind the people who signed them…

Gil January 12, 2011 at 3:47 am

Oh please. A person who owns land can make people trespassers without them having signed any contract. Hence one-sided deals do exist.

sweatervest January 12, 2011 at 1:51 pm

No one said one-sided deals do not exist. Anthony said IP laws are not examples of such.

As longacre (perhaps unintentionally) illustrates, IP can only come out of contracts and thus bind only those who sign it. I would not call this IP because it fails to accomplish what actual IP laws are aiming for, which is controlling the supply of copies. With a “contractual” IP law, as soon as one person under the contract breaches it, the copies get out and no legal recourse can be taken against everyone else who shares copies.

james b. longacre January 15, 2011 at 12:59 pm

i dont know if i agree with you or not.

so contracts are only signed??

i dont know what you mean by sufficient. contracted secret-keeping in the case if herb and spice recipies maybe sufficent in some cases. as far as the alleged protecting of sound and written content third parties who gain access to it arent bound by any such agreements and the info/content likely woulndt be restricted to any great degree. other compensation forms would arise i suppose.

Silas Barta January 11, 2011 at 5:29 pm

Pointing out the silliness of current copyright laws is not the argument. The argument is property rights theory. These things are *illustrations* of the vagueness and arbitrariness of IP laws.

Really? Why don’t you ask the author of the post, and see if he agrees with you?

sweatervest January 11, 2011 at 6:46 pm

Another strategy to dodge the discussion.

If that was the intention of the poster, then I disagree with the poster’s point. Extrapolating that to being support for a pro-IP position is a non-sequitur.

You seem to be suggesting that if you can find someone that poorly argues against IP, that invalidates all arguments against IP.

Why not just address the point I made instead of repeatedly posting the same thing over and over? The argument is property rights theory. I posed the question that if you agree these IP laws are silly, present me with IP laws you don’t think are silly.

Dave Narby January 12, 2011 at 12:34 am

Silas, if I may…

“I posed the question that if you agree these IP laws are silly, present me with IP laws you don’t think are silly.”

No sweat.

http://en.wikipedia.org/wiki/Copyright
http://en.wikipedia.org/wiki/Patent
http://en.wikipedia.org/wiki/Trademark

Peter Surda January 12, 2011 at 4:24 am

Dave,

the example posted by S. M. Oliva is copyright. You contradict yourself again.

sweatervest January 12, 2011 at 2:03 pm

“Exceptions and limitations to these rights strive to balance the public interest in the wide distribution of the material produced and to encourage creativity”

In other words copyrights are utilitarian.

Dave, if you are a utilitarian then you are not an economist and you have rejected ethics. According to a possible approach to utilitarianism, you could justify the state forcing people to admit strangers into their living rooms to keep all living rooms at full capacity and not “waste” seating space. More generally, utilitarianism is pseudo-scientific hogwash that blatantly ignores that *there is no such thing as social welfare*. Whatever definition you are using to conclude that one allocation of resources is “better” than another is ill-defined and empty. You establish nothing past your own personal preferences by presenting utilitarian arguments. That copyright page is riddled with ambiguities but I have no need to elaborate on those because the “justification” subsection clearly lays out the utilitarian basis of copyright. Utility is subjective, always tied to a particular actor. Even if it could be established that an innovation would not happen without IP, you cannot turn an “is” into an “ought” and say that such an innovation *should* happen. Utilitarianism is unscientific and disastrous.

For patents:

“In accordance with the original definition of the term “patent,” patents facilitate and encourage disclosure of innovations into the public domain for the common good.”

Ahh, a reference to the “common good”! And you think this is libertarian!? So the IP “communists” are the ones that reject the notion of a common good, huh?

As for trademarks:

“Trademark law is designed to fulfill the public policy objective of consumer protection, by preventing the public from being misled”

So now we’ve entered the realm of the Nanny State. And this is libertarian, how!?

Dave Narby January 12, 2011 at 12:30 am

And once again, the pointing out a single abuse of the copyright system (if in fact this is an abuse, we hardly have the whole picture) is used as justification for removing *all forms of IP, everywhere*.

How the owners of Mises.org think this is somehow constructive to spreading the works of Ludwig von Mises is astounding to me. It’s almost like they want to discredit the work!

Colin Phillips January 12, 2011 at 2:50 am

Try to see this from another perspective. Imagine there was no state, and laws and customs were being developed on an as-needed basis, according to libertarian principles. Imagine that a majority of members of this society were libertarians, meaning that they will only support and abide by laws and customs which do not undermine the right of self-ownership and the right to property, including the right to use that property in any non-coercive manner. Originally, this society does not have IP, but eventually, someone is going to be beaten to market by someone else with a similar idea, and is going to try complain that their idea has been “stolen”.

From a libertarian arbitrator/judge perspective, can you see that the easiest default position is to dismiss claims of theft out of hand if you are still in possession of the property you claim has been stolen from you? That if the complainant cannot show which of his scarce resources he is now missing, he does not really have a case?

From the judge’s perspective, the most logical position is to dismiss IP, until such time as someone can provide a realistic, libertarian solution which can justify IP. It is relatively easy to create registers of who owns which land or which tractor, but a far harder proposition to fairly record which ideas reside in which brains, at least at the moment. It seems to me then, that the default libertarian position should be to reject the statist status quo, and look at the problems of IP with a fresh, non-coercive perspective. At the moment, no justification for IP as it currently stands exists, and nobody has been able to propose a meaningfully more robust alternative. Therefore, removing all forms of IP is the best idea we have.

I fear that humanity has lived under statist control for so long that we are often unable to see just how unnecessary and damaging the structures and controls of the state really are. Thus, people are stuck in an endless loop of trusting that the statist solution is the only one, and proposing reforms to that solution, only to have those reforms fail again, and looking for a statist solution to the new problems which arise as a result. IP is just such a case: businesses have always sought ways to monopolise their market, and IP provides a way to do this cheaply, using taxes to purchase state muscle rather than corner the market through superior service. But it becomes impossible to distinguish which uses of this coercion are legitimate, and which are abuses, so people are tirelessly trying to find the right set of reforms to this system. While I wish them luck, thus far, no realistic solutions have been proposed. In the meantime, IP continues to be unjustifiably damaging to some people. The libertarian position is therefore that IP should be left alone until such time as it can actually work fairly.

Something to consider: If it were possible to justify IP in some as yet undefined non-statist, non-coercive manner, surely the best way to find it would be to remove all statist stop-gaps to the problem, and stop enforcing IP via the state altogether. If there truly is a market need, and a non-coercive form of IP really exists (which you seem to believe, although honestly I cannot yet imagine it), then as an adherent to the Austrian school I am forced to believe that this non-coercive IP formulation would be discovered far faster than via reforms of the coercive statist IP formulation we currently see. Do you agree, Dave?

Dave Narby January 12, 2011 at 10:51 am

“Try to see this from another perspective. Imagine there was no state,”

…What?! Sorry, I’m a moderately Libertarian centrist, not an anarchist. I like having some government.

Colin Phillips January 12, 2011 at 11:05 am

Perhaps this is where we differ, then, Dave. To me, being “moderately Libertarian” is like being “moderately conscious,” it’s not quite as convincing as the real thing. I suppose you think cardboard is moderately tasty?

By the way, anarchism does not advocate “no government”, it advocates “no rulers”. This is actually irrelevant to the thought experiment I posted, though. If you like, you can try imagining you and 100 other people have washed up on an uninhabited tropical island, where no state has existed. Does this help?

sweatervest January 12, 2011 at 2:09 pm

“I suppose you think cardboard is moderately tasty?”

I love it, Colin!!

Dave, admitting that you do not reject the state on principle goes hand in hand with your utilitarianism, i.e. rejection of ethics. Violence isn’t unjustifiable, it just doesn’t work as well as statists think it does.

Also, Dave has again used clever self-serving posts to avoid the entire post by Colin. He said “imagine there is not state”, not “considering that you want there to be no state”. He never asked you to be an anarchist or reform your views on government. He asked you to imagine a situation without a government and see how it works. This is an expression of dogmatism: even if the Austrian school can (and does) crush any possible justification for the state, you’ll still plug your ears and say, “But I like government”. This, again, goes hand-in-hand with utilitarianism, which is no more than masquerading “I want this” as “Society wants this”.

Stephan Kinsella January 12, 2011 at 2:26 pm

You’re a member of the LP? Because that’s what “Libertarian” means. “Government” is ambiguous. It can mean private institutions or it can be a synonym for the state. As such it’s prone to the equivocation your kind likes to engage in.

Stephan Kinsella January 12, 2011 at 2:25 pm

Nice!

Peter Surda January 12, 2011 at 5:00 am

Dave,

And once again, the pointing out a single abuse of the copyright system (if in fact this is an abuse, we hardly have the whole picture) is used as justification for removing *all forms of IP, everywhere*.

And once again, you fail to explain, why, according to your theory, the example is an abuse, instead pretending that contradicting yourself is not a problem. Why is it abuse? Does it “not” promote innovation?

Dave Narby January 12, 2011 at 10:55 am

…Huh?

What I wrote was not any “theory”, it’ was an observation from the article that we’re not getting the whole story here (it’s an excerpt that relates to a larger story about this Colfield/Sallinger/Colting dispute)…

Do you even *read* my comments before firing off your belligerent replies? Seriously.

Peter Surda January 12, 2011 at 11:02 am

Dave,

nice dodge. Does not work on me.

sweatervest January 12, 2011 at 2:19 pm

“What I wrote was not any “theory”, it’ was an observation”

How does one make an observation? Seems to me like you have to theorize on what the incoming data means.

But, if you admit that you have excused yourself from ratiocination I’ll back you up on that.

You are making the same mistake Silas makes. This article is an illustration of the failure of IP, not an argument to that effect. Either way, you have never come close to making a sound argument for why *any form of IP, anywhere* should be upheld.

“How the owners of Mises.org think this is somehow constructive to spreading the works of Ludwig von Mises is astounding to me. It’s almost like they want to discredit the work!”

How about you actually read “Human Action” and tell me how often Mises speaks of what’s “best for society”. It’s almost like you haven’t read the work!

“Do you even *read* my comments before firing off your belligerent replies? Seriously.”

Oh yeah “back off” says the guy who accused Sione of lying about his occupation and me of being a pseudonym for some other poster, threatens mises.org with non-donation for not conforming to his utilitarian nonsense, and slanders Kinsella by suggesting he is trying to discredit this institute’s namesake.

I think what you are noticing is that I and other bloggers here and getting quickly fed up with your schoolyard debating tactics.

AskanIPquestion January 12, 2011 at 4:55 am

Please answer the questions which follow after this description:

Imagine person A living on one planet.

Imagine person B living on another planet.

Imagine person C visiting B on his planet.
C is observing B using B’s objects in a certain “new” combinatory way. Person B forbids person C to tell anyone about these “new” combinations (for the sake of the example let this be a contract between C and B).

What if person C visited person A on A’s planet and told him about these combinations and A uses these combinations with his own objects?

Has person B any rights to forbid A to use A’s objects in this new combinatory way? What rights to this combination patterns does B have?

Dave Narby January 12, 2011 at 11:00 am

That all depends depends on whether or not they formed a government and passed a law about it.

And as an observation, there’s an awful lot of pseudonyms flying around this site these days… lol.

AskanIPquestion January 12, 2011 at 12:31 pm

“And as an observation, there’s an awful lot of pseudonyms flying around this site these days… lol.”

Yeah, so what?

“That all depends depends on whether or not they formed a government and passed a law about it.”

IP depends on the existence of governments and government-regulated laws? Without them there is no IP?

Colin Phillips January 12, 2011 at 12:59 pm

So, my rights only exist if they are granted to me by a government first? If you vote for someone that passes a law which infringes on my rights, does that mean my rights have been attacked by this government, or does it mean that those rights have ceased to exist?

sweatervest January 12, 2011 at 2:22 pm

“That all depends depends on whether or not they formed a government and passed a law about it.”

Oh wow. Jews didn’t have rights in Nazi Germany. Blacks had no rights for the first hundred years of the United States. And if the right law gets passed tomorrow, anyone who dares argue with Dave Narby won’t have any rights.

Law of the Jungle. Might is Right. See what I mean when I speak of a rejection of ethics?

Peter Surda January 12, 2011 at 7:18 am

Oh and of course, anyone who thinks that even text is an unambiguous pattern should watch this: http://www.youtube.com/watch?v=qu9MptWyCB8

Michael A. Clem January 12, 2011 at 12:51 pm

I prefer odd text, myself. ;-) But seriously, the sketch, while very funny, was about the spoken word, not the written word. Written text can still be ambiguous, but is less so if proper grammar and punctuation are used.

Peter Surda January 12, 2011 at 2:24 pm

Written language developed after spoken language. It was also accompanied by an effort of standardisation, so that’s probably why there are less homographs than homophones.

But if you want written “text”, there another sketch: http://www.youtube.com/watch?v=ucqFM3CtcNM :-)

momo123 March 10, 2011 at 2:27 am

yeah, it’s a problem. but from now on, we have do many things to deal with that.

Merlin Season 3 DVD
Sons of Anarchy Seasons 1-3 DVD
The Big Bang Theory Seasons 1-3 DVD

jason May 18, 2011 at 6:28 am

you are right about that

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