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Source link: http://archive.mises.org/16570/cordato-and-kirzner-on-intellectual-property/

Cordato and Kirzner on Intellectual Property

April 21, 2011 by

I’ve noted before the views of Austrians such as Mises, Hayek, and Rothbard on IP. ((On Hayek: see Tucker, “Misesian vs. Marxian vs. IP Views of Innovation“; Tucker, “Hayek on Patents and Copyrights“. On Mises, see Human Action 3rd rev. ed. Chicago: Henry Regnery (1966), chap. 23, section 6, pp. 661–62; see also pp. 128, 364; see also Kinsella, “Mises on Intellectual Property“. Rothbard: Knowledge, True and False and  Man, Economy, and State and Power and Market, Scholars Edition, pp. liv, 745-54, 1133-38, 1181-86.)) They would be placed in phase 3 of The Four Historical Phases of IP Abolitionism.

In my post Mossoff: Why Should Business Leaders Care About Intellectual Property (Objectivism), I noted Sheldon Richman had relayed to me an interesting exchange between Roy Cordato and the pro-IP Adam Mossoff:

Mossoff recently appeared on an IP panel at the recent APEE annual meeting, along with several anti-IP libertarians, including Sheldon Richman (I believe Roderick Long was present too but I am not sure if he was on that panel). The panel also had Ed Lopez who offered efficiency arguments against IP but was not much part of the debate. Richman related to me that at one point, Roy Cordato asked Mossoff if IP would protect a Kirznerian entrepreneur who has a novel insight about the gap between the cost of inputs and the price of an output. At first Mossoff said he didn’t know what a Kirznerian entrepreneur was (Cordato explained), then he didn’t get the point (thinking Cordato meant the actual product rather than the idea about the gap between costs and price), then ended up saying that the idea would be patentable–which means the law would stop market equilibration, since others could not jump in and imitate the entrepreneur.

This got me curious about Cordato. Sure enough, in his 1992 book Welfare Economics and Externalities in an Open Ended Universe, he has several passages indicating a skepticism of IP. On pp. 21-22, he discusses the difference between Mises and Rothbard on patent and copyright; see also p. 36 (“If an external benefit “problem” arises that is the result of ambiguously defined entitlements, then some form of public policy which focuses on establishing those rights may be advocated. The sole example of this in the literature is Mises’ discussion patent and copyright laws”). On p. 80:

Mises has suggested, though, that an external benefit “problem” might arise where intellectual property rights are not clearly defined; this is the issue of patents and copyrights (see chapter 1). Mises clearly focuses on an issue of property rights that may have normative implications for catallactic efficiency. Ambiguities with respect to entitlements in the area of inventions and the generation of ideas can lead to interpersonal conflicts in the plan-formulation and goal-seeking process. As noted, to efficiently make plans, individuals need to know that their rights to use the relevant property will be upheld at pertinent points in the future. The issue of patents and copyrights may be an application of this principle.

On the other hand, this is clearly an area where the limitations of economic analysis are exposed and a theory of justice may need to be invoked. Consistent with O’Driscoll and Rizzo’s point, this is a case where certain ethical questions need to be resolved before economic analysis can be applied. The question of whether property rights can legitimately be applied to ideas, particularly given that ideas and inventions can be and often are independently discovered, has both practical and ethical implications. In such cases, the granting of property rights to a discovery itself denies the rights of others who have made or will make the same discovery independently (Rothbard 1970, p. 71). This denial of rights would clearly interfere with plans that were made by the independent discoverer and may consequently have a negative impact on the accuracy of some market prices. This suggests that the granting of property rights to ideas would likely lead to its own problems with respect to catallactic efficiency.6 Mises’s brief analysis, providing neither a theory of justice nor efficiency, does not give us a satisfactory approach to this issue.

As discussed in Chapter 1, Rothbard rejects the notion of intellectual property rights, noting the conflicts that arise with respect to the rights of independent discoverers. He also points out that, if reproduction is the concern, the inventor of a product or the writer of a book can, through contract, limit the rights of others with respect to the use of these products. Furthermore he rejects the standard external benefits argument for intellectual property rights which claims that the lack of such rights results in the underproduction of research and innovation. Invoking the standard Austrian criticism of orthodox externalities analysis, Rothbard asks, “By what standard do you judge that research expenditures are ‘too much,’ ‘too little,’ or just about enough?” (1970, p. 72).

If it is concluded that discoveries and ideas are not the appropriate target of property rights then these kinds of externalities would be moved to quadrant B in the upper half of our matrix. In other words they would not constitute a violation of the lIS ["ideal institutional setting" -- SK]. That may be the appropriate positioning for such externalities in any case, since it is not clear that catallactic efficiency is unambiguously improved by establishing such entitlements, particularly given the problem of independent discovery. …

As an aside, it should be pointed out that the absence of clearly defined property rights in ideas and inventions has not proven to be a market-paralyzing problem. There are many areas where patent and copyright protections do not exist and production flourishes. These include fashions, management and marketing strategies, scientific principles and mathematical formulae, and artistic endeavors such as comedy, magic, and jazz improvisation.

In addition, some of Cordato’s discussion of Kirzner’s views (see p. 66) got me looking through his writings for any hint of a view about IP. Here is what I found. In his 1963 work Market Theory and the Price System, he writes:

In a market system each member of the society is free to act, within very wide limits, as he sees fit. Moreover, the system operates within a framework of law which recognizes individual rights to private property. This means that each individual is free at each moment to employ the means available to him for the purpose of furthering his own ends, providing only that this should not invade the property rights of others. [p. 13]

Note that this echoes Mises’s own view of means and ends: that humans, in acting, employe scarce means to achieve certain ends. As I argue in Intellectual Freedom and Learning Versus Patent and Copyright and Goods, Scarce and Nonscarce, the role of scarce means is to be employed in action causally to achieve a desired end; knowledge is used to guide the agent’s choice of ends and selection of means causally suited to help achieve the end chosen. Note the examples given by Kirzner on pp. 46-47 imply that the scarce means chosen are causally efficacious in bringing about the desired end:

In the actuality of the everyday world, human beings are able to satisfy their wants only through directing their efforts toward appropriate means for such satisfaction. A man who wishes to eat may purchase food, cook food, or simply put on a hat and coat and go to a restaurant. His actions have been intermediary to the goal of eating. “Eating” is the end of his present endeavors; the means that he adopts for the attainment of his end can be an act of purchase, cooking, or walking to the restaurant.

This view of human action implies that there ought to be property rights in scarce means, but not in information, knowledge ideas. This is hinted by Kirzner when he implies patents are monopoly that derogate from the normal free market process: “hindrance of the market process may consist of artificial obstacles to resource mobility (for example, immigration laws). Or there may be institutional grants of monopoly power (for example, patent laws).” (p. 308).

In a 1973 paper, Producer, Entrepreneur, and the Right to Property, Kirzner has further insights that support the view that he is anti-IP or at least that his thought is consistent with the anti-IP view. Note first that Kirzner observes: “until a product or technique has in fact been introduced, possession of all necessary means of production (including relevant knowledge) guarantees nothing without the presence of entrepreneurial initiative”. Here he recognizes knowledge is an important factor in being able to produce: ideas guide action, which itself employs scarce means to causally achieve a desired end. ((See Tucker & Kinsella, Goods, Scarce and Nonscarce, n. 20.))

He also recognizes “Precision in applying the term ‘what a man has produced’ seems to be of considerable importance.” Indeed. It is lack of precission in the idea that man owns “what he has produced” that leads Randians and other libertarian “creationists” (as I call them) astray, as I noted in Mossoff: Why Should Business Leaders Care About Intellectual Property (Objectivism). In talking loosely about values, wealth, and “production” they lose the distinction between the role of human action (and labor, creativity, the intellect) in creating value (by using labor to transform or rearrange one’s already existing property (factors) into a more (subjectively) valuable configuration–to “create wealth”), and in acquiring property rights (which one does by either homesteading a previously unowned scarce resource or by contract from a previous owner–but not through “production” which is only a way of transforming already owned things into a more-valuable arrangement).

Note also, in a recent post, Hume on Intellectual Property and the Problematic “Labor” Metaphor, I observed that the “labor” metaphor employed by Locke is misleading and even unnecessary; and that Hume saw this back in 1740, when he criticized the overly metaphorical (“figurative”) Lockean idea of “labor” being “joined to” or mixed with objects, and he disagrees that this assumption is necessary to justify Lockean homesteading. He thinks a simpler version of Locke’s argument still works, one that drops the assumption that labor has to be “joined” to the object. I have long argued that it’s confusing to say we own labor, since labor is just a type of action, and we do not own our actions. It was refreshing to find Hume saying much the same in 1740.

And to my delight, I see Kirzner quoting with approval J.P. Day:

Day is sharply critical of Locke, denying that one can talk significantly of owning labor (in the sense of “working”). Laboring, Day contends, is an activity, “and although activities can be engaged in, performed or done, they cannot be owned.”

This is much the same point made by Hume earlier.

I find here, in the writing of Kirzner, and Day, and Hume, support for my view that the “labor” stuff in Locke’s homesteading is confusing and can be omitted; and, it is this this “labor” view that is used by IP advocates, the IP “creationists,” who say that we own the “products” created by our labor (whether physical or, in the Mossoffian-Randian case, “mental” labor).

One final point: Kirzner notes a connection between Locke’s labor theory of property and “the labor theory of value of the later classical economist[s],” in note 29, where he observes:

On the question of the impact of Locke’s labor theory of property on the later classical labor theory of value, there has been controversy. Myrdal (The Political Element in the Development of Economic Theory, pp. 71f), Halevy (The Growth of Philosophic Radicalism, p. 44), and W. A. Weiskopf (The Psychology of Economics, University of Chicago Press, 1955, pp. 22ff, p. 14j) all assert a direct influence. See however J. A. Schumpeter, History of Economic Analysis (Oxford University Press, 1954) pp. 120, 310-311; see also I. M. Kirzner, The Economic Point of View, (Van Nostrand, 1960), p. 25, and p. 190, notes 8, 9.

This is a point I’ve been trying to make for some time–that the labor theory of property has led to mistakes in political theory (such as IP and “creationism) just as the labor theory of value has corrupted economics. ((See Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors; Locke, Smith, Marx and the Labor Theory of Value.))

So we have both Cordato and Kirzner strongly leaning against IP, in Phase 3, along with other Austrians.

If anyone knows of any more explicit comment by Kirzner on IP please post in the comments.

{ 106 comments }

Wildberry April 22, 2011 at 10:53 am

The debate around who has the best justification for the rights of property ownership, as evidenced by Kinsella’s recent comments on Shulman’s and Mossoff’s theories, seems somewhat moot in light of the common holding that an author exclusively owns his original manuscript if undisclosed or controlled by contract.

Since a contract presupposes ownership of the subject matter of the contract, the only issue of contention seems to be whether the rights of ownership, which may be unbundled by contract, can operate in the market under principles of property rights.

Since in the case of copyrights and patents, economic exploitation requires disclosure, then the question of how disclosure affects pre-existing rights of ownership, and how such rights interact with the pre-existing rights of others, becomes relevant issues of contention.

One argument is the “ideas are free” line of reasoning, and that use of all information and knowledge should remain a matter of the public domain.

In support of that position, it seems Kinsella may be making some use of the benefit of the doubt to find support in the writings of Kirzner. For example, Kinsella writes:

Note first that Kirzner observes: “until a product or technique has in fact been introduced, possession of all necessary means of production (including relevant knowledge) guarantees nothing without the presence of entrepreneurial initiative”. Here he recognizes knowledge is an important factor in being able to produce: ideas guide action, which itself employs scarce means to causally achieve a desired end.2

Mises appears to support the notion Kinsella focuses on, the use of knowledge, when he describes the fact that all human actions are preceded by rational thought. However, by this passage Kirzner seems to me to be making a different point; the requirement for a pursuit of the economic interests in the works; i.e. “the presence of the entrepreneurial initiative”.

Couldn’t this be interpreted as reference to the “fixation” requirement in copyrights, and the operational requirement of the “useful” standard in patents? That is, it appears Kirzner is saying that simply having the concept or idea is not sufficient for rights to arise; a work or invention must be first reduced to a fixed or operational form. Since it is unlikely that such effort would be pursued in the absence of some economic motive, couldn’t this be what is meant by “entrepreneurial initiative”?

And doesn’t this initiative require disclosure to the potential markets and consumers?

It appears at least plausible that what he is saying does not focus on the use of knowledge, which is not sufficient for the purpose of establish ownership rights. Likewise, the mere possession or use of an idea is not sufficient to secure copyright or patent protection. This position is consistent with the existing rules of law in copyrights and patents.

Regardless of how one reaches this conclusion, that before disclosure the author or inventor owns what he has produced, the introduction of that product into the market raises an economic question, and suggests that legal rights to property are the human device for securing those rights.

If this is the case, then what is the original justification in saying that this work is owned? I think there are more than one line of reasoning to justify the legitimacy of that position. Since it is owned, it is property, and since according to Kinsella, only homesteaded resources can be property, we can assume the author must have homesteaded something. What is that?

If that thing is owned before it is disclosed, as Kinsella, Mossoff and Shulman to name three, all seem to agree, then how does that privately owned object operate in the market, as the owner pursues his “entrepreneurial initiatives”?

The question I am asking is, what may he do with this property while still retaining ownership as he wishes? How is it treated in relation to the prior existing property rights of others? How would two traders, who each hold their own subjective sense of value, approach the economic calculations that precede the economic transactions of this privately owned object?

Kinsella seems to offer only two alternatives; keep it a secret and retain exclusive ownership, or disclose it and loose all ownership rights.

As Mises has said, both approaches have their own problems.

I am wondering how Kinsella’s position can be reconciled with the problem of producing for external economies as described by Mises and elaborated by Coase and others?

Peter Surda April 22, 2011 at 11:41 am

Wildberry,

The question I am asking is, what may he do with this property while still retaining ownership as he wishes?

Neither the act of authoring, nor publishing or copying, changes what people may or may not do with their property. Those acts change values but not rights.

Why should any of those acts cause the change of ownership? Because the author worked so hard and copiers not? Oh wait, that’s the labour theory of value.

Wildberry April 22, 2011 at 11:55 am

As I said:

Kinsella seems to offer only two alternatives; keep it a secret and retain exclusive ownership, or disclose it and loose all ownership rights.

Jule Herbert April 22, 2011 at 12:57 pm

In the “natural order,” there is a fairly easy work-around or middle-ground between “secrecy” and “broadcasting” an idea: confidentiality agreements backed up by cash bonding agreements in the event of default.

Wildberry April 22, 2011 at 1:06 pm

@ Jule Herbert April 22, 2011 at 12:57 pm

Isn’t contracting, whether merely for non-disclosure, or a limited use license, just another way of securing secrecy?

It requires non-disclosure beyond specified limits in exchange for disclosure between the contracting parties, and presumes enforcement against either pary in the event of default. Correct?

Jule Herbert April 22, 2011 at 1:20 pm

Correct, except the idea is no longer a secret and there are no presumptions about anything.

Wildberry April 22, 2011 at 1:29 pm

@Jule Herbert April 22, 2011 at 1:20 pm

I may not understand what you mean. What good is a contract if there is no presumption of enforcement rights?

Under those conditions, wouldn’t that simly be disclosure without rights, or option 2?

Wildberry April 22, 2011 at 2:28 pm

According to the rules of the universe, then, an author is limited to a choice between 1) keeping his manuscript secret, in which case he maintains complete and exclusive control and ownership of it, or 2) disclosing it, and in so doing, retain no rights to limit the use of the transferred copy, effectively putting it into the public domain.

He may use the device of contracts to accomplish option 1), but there is no cause of action for breach of that agreement except to the extent that liquidated damages have been established against that possibility, say as Julie suggests, a cash bond of some form.

In the event of such breach, the author has inadvertently become subject to option 2.

Is that about it?

Stephan Kinsella April 22, 2011 at 2:56 pm

Who can say. I don’t konw if disclosing means you put it in the public domain. Maybe you do it in such a way as to DRM it to make it impracticable. Maybe you offer it streaming but with a subscription, or with support or other bundled services so that naked and alone it’s not the same good. Who knows. who are we to say what entrepreneurs might think of?

Jule Herbert April 22, 2011 at 3:28 pm

“If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.”
— Thomas Jefferson

Wildberry April 22, 2011 at 3:59 pm

@Jule Herbert April 22, 2011 at 3:28 pm

Yes, I know this quote. It is beautifully written, and is the basis for the “ideas are free” line of reasoning in the anti-IP position.

The problem, of course, is that IP does not protect ideas, which are part of the public domain, as Jefferson suggests they shoud be.

Wildberry April 22, 2011 at 3:57 pm

I suppose there are any number of “technical solutions” to achieve option 1).

But isn’t it also true that any technical failure to achieve the goals of secrecy means that option 2) becomes operational, despite any intentions to the contrary?

Peter Surda April 22, 2011 at 10:05 pm

Wildberry,

according to “laws of the universe”, the author may choose to act or not to act. If he chooses to act, he can further choose to respect other people’s property rights or not. Using newspeak is not going to change that.

Peter Surda April 22, 2011 at 10:26 pm

Wildberry,

if you don’t like that, you need to either spend money on secrecy or violate someone’s rights. Why should I care about what you like or how you spend your money? I don’t give a damn. But I very well do care if you advocate the violations of other people’s rights.

Peter Surda April 22, 2011 at 11:20 pm

Wildberry,

also, what you propose is a false dilemma fallacy. The choice is not between secrecy and “losing all ownership rights”. That’s just another example of newspeak.

The choice is between secrecy and exposure to competition.

Peter Surda April 22, 2011 at 11:34 pm

That should have been a “b” rather than a “blockquote” but hopefully it’s still understandable.

Stephan Kinsella April 22, 2011 at 2:07 pm

I’m not “offering”. This is just the way it is. If you don’t want people to know your secrets, don’t reveal them. this is the universe’s fault not mine.

Anti-IP Libertarian April 22, 2011 at 11:23 am

“Kinsella seems to offer only two alternatives; keep it a secret and retain exclusive ownership, or disclose it and loose all ownership rights.”

There is no ownership of information. There is only ownership of tangible objects (including yourself – self ownership). Therefore if you do not want to risk that INFORMATION (=certain patterns) that is stored in your property (including your brain) is disclosed to non-contractors, keep it for yourself.

Wildberry April 22, 2011 at 11:57 am

As I said, what you describe is option 1: secrecy

Anti-IP Libertarian April 23, 2011 at 9:22 am

You are wrong: Your option 2 states:
“keep it a secret and retain exclusive ownership,”

You do not have ownership over information. You only have ownership over yourself and your property. So you cannot “retain exclusive OWNERSHIP”. Therefore if you do not want information that is stored in your brain or your property to be copied into OTHER property (brains etc.) then do not tell. This has nothing to do with exclusive OWNERSHIP in information.

The same with recipes: If you do not want others to bake a cake with “your” recipe than do not tell them.

If you want others to pay you for “your” recipe then make a contract with them and/or sell them your cakes.

The same with your appearance: If you do not want others to see you then cover yourself. There is no right to control the minds of others.

Wildberry April 23, 2011 at 12:04 pm

@Anti-IP Libertarian April 23, 2011 at 9:22 am

You disagree with Kinsella then? Please explain.

Anti-IP Libertarian April 23, 2011 at 12:40 pm

Where do I disagree?

You have to explain and show the disagreement.

Wildberry April 23, 2011 at 1:47 pm

Here: http://blog.mises.org/16479/the-four-historical-phases-of-ip-abolitionism/comment-page-1/#comment-773025

Stephan Kinsella April 18, 2011 at 3:26 pm
They aren’t forced to share it. If they want to keep it secret, fine. but if they decide to make it public–for example by selling it–then they cannot whine when others use the information.

And related posts in this thread above.

Anti-IP Libertarian April 23, 2011 at 3:55 pm

“They aren’t forced to share it. If they want to keep it secret, fine. but if they decide to make it public–for example by selling it–then they cannot whine when others use the information.”

Yeah, and where do I disagree with which part of that statement EXACTLY?

I stated that information can be kept a secret if someone does not want to share it.

I also stated that does not mean that information itself is ownable/a property.

Where is the disagreement with what Stephan Kinsella wrote?

I do not see any.

Wildberry April 23, 2011 at 4:28 pm

OK, I’ll spell it out more clearly.

If I don’t want my manuscript, and the information that it contains to be shared, or I control who I share it with by contract, then I will always own it, because ownership simply means the right to exclusive use and/or possession. This is option 1).

If my intent to accomplish 1) for any reason fails, then the only other option is 2), in which case it has not been kept secret, and it becomes part of the public domain. Because it is in the public domain, I can no longer claim exclusive use or possession. I no longer own it. “ideas are free”.

Kinsella says that he is not really offering these and only these two alternatives, because this is really a “law of the universe”. I think it is fair to assume that Kinsella believes in this universal law.

So if you disagree that these are the only two options, then you disagree with Kinsella. If you agree with Kinsella, then you too believe this is a universal law.

By universal law, I can only presume this means that it would be true, like gravity, regardless of whether humans are involved in any way.

Do you agree with Kinsella?

Anti-IP Libertarian April 24, 2011 at 5:03 am

“If I don’t want my manuscript, and the information that it contains to be shared, or I control who I share it with by contract, then I will always own it, because ownership simply means the right to exclusive use and/or possession. ”

You own the manuscript but not the information itself (and each representation/instantiation of that information which is just another word for a certain pattern of physical objects). You may own a piece of paper with text written on it but you do not own each instantiation of these words on OTHER pieces of paper. You have to try to get that difference.

“By universal law, I can only presume this means that it would be true, like gravity, regardless of whether humans are involved in any way.”

Ownership has nothing to do with physical natural laws like gravity, particle physics and so on.
Ownership is a human concept that arises when there is more then one rational entity in a world with scarce objects.

For the rest of your statement: You are wrong. I do not disagree with Stephan Kinsella on IP.
I disagree with YOU that there is ownership in information itself (ownership in PATTERNS of matter and not only matter itself).

Wildberry April 24, 2011 at 11:55 am

@Anti-IP Libertarian April 24, 2011 at 5:03 am

You own the manuscript but not the information itself (and each representation/instantiation of that information which is just another word for a certain pattern of physical objects). You may own a piece of paper with text written on it but you do not own each instantiation of these words on OTHER pieces of paper. You have to try to get that difference.

If I own the manuscript, and have not shared it with anyone, then do you claim to own something in or on that manuscript, even though you don’t know what it is, or do I own it and everything on it?

I am asking you whether I can enter a contract with you with the purpose of preventing you from disclosing the information in the manuscript?

I the answer is no, then why would I ever disclose it?

If the answer is yes, then how could I do that if I didn’t own it first?

Ownership has nothing to do with physical natural laws like gravity, particle physics and so on.

I agree, so I wonder what Kinsella meant by “universal law” concerning the two options he describes?

Ownership is a human concept that arises when there is more then one rational entity in a world with scarce objects.

Yes, I agree in general. Would you then say that property is a human device?

For the rest of your statement: You are wrong. I do not disagree with Stephan Kinsella on IP.

Again, I didn’t ask you that. I asked if you agree that there are only two options for an author regarding his manuscript: 1) secrecy and 2) public domain.

Andras April 22, 2011 at 12:23 pm

@Anti-IP “Libertarian”
“Therefore if you do not want to risk that INFORMATION (=certain patterns) that is stored in your property (including your brain) is disclosed to non-contractors, keep it for yourself.”
Contractors? What contractors? How do you contract something what is not (your) property according to a no IP regime? Don’t you want to have it and eat it at the same time? What you will get is absolute secrecy!
I keep asking this and what I get is just being banned.
Stephan, is that your best argument? Banning people for questioning your contradictions?
P. Surda, Ask Stephan about your last question to me.

Wildberry April 22, 2011 at 12:36 pm

@Andras April 22, 2011 at 12:23 pm

Good to see you’re back.

Stephan Kinsella April 22, 2011 at 2:06 pm

“Ask Stephan”… we are not on a first name basis. for one you are a nym. As for banning–I didn’t ban you. I banned Wildberry for being a gadfly and a troll but then changed my mind. but I dont have to engage in such wastes of time.

Andras April 23, 2011 at 1:21 am

Aye, Aye sir, superintendent Kinsella, sir!
My reply hasn’t made through, it wasn’t posted. After banning Wildberry, what could have my conclusion been? I was wondering when are you answering his questions? He so eloquently reformulated them over and over again, eventually to a high school test type yes/no questionnaire. No avail, no answers.

nate-m April 22, 2011 at 2:35 pm

Contractors? What contractors? How do you contract something what is not (your) property according to a no IP regime? Don’t you want to have it and eat it at the same time? What you will get is absolute secrecy!

Your mind is your own. So is your effort. You can contract those out with terms and stipulations if you like and it’s up to other people to voluntarily accept your terms and your conditions. You have a lot of ethical freedom to do what you want since nobody is being forced into any agreement.

However the mind and efforts of other people are NOT your own. This is where IP comes in.

IP seeks to institute a set of restrictions and controls on the physical activity of other people with their own property that are not only involuntary, but universal in nature. These involuntary controls over the actions and property of others is a attempt to create a ownership of something that is utterly intangible.

So, yes. If you have a secret and wish to get the agreement of a party before you reveal your secret to them… then if they agree to restrictions then that is fine and has nothing to do with copyrights/patents really.

However this is not the same as revealing your secrets to the world and expecting the whole of humanity to honor your restrictions involuntarily under the point of a gun: Which is what IP is.

The difference is pretty obvious here. I don’t know what your missing.

Wildberry April 22, 2011 at 3:24 pm

@nate-m April 22, 2011 at 2:35 pm

Your mind is your own. So is your effort. You can contract those out with terms and stipulations if you like and it’s up to other people to voluntarily accept your terms and your conditions. You have a lot of ethical freedom to do what you want since nobody is being forced into any agreement.

So you agree that I could re-create the entirety of the copyright code IF 1)it is copied verbatim into a contract, 2) required that any disputes will be decided according to existing case law, and 3) there is a presumption that the agreement is enforceable in some way that meets the expectations of both parties. Is that what you mean?

IP seeks to institute a set of restrictions and controls on the physical activity of other people with their own property that are not only involuntary, but universal in nature.

Would it be accurate to restate this using “property” instead of IP? If so, then aren’t you begging the question as to whether IP is or not property, since if it was, it would behave like property, and if not, it wouldn’t?

If so, then doesn’t all property to what you say; it limits the actions of others to the extent those actions infringe on the rights of others? Furthermore, when there is a conflict of rights (say the right to emit toxic smoke from your smokestack and the right to breath clean air), that conflict has to be resolved by applying some rule?

And would you then agree that the rule that is employed has an economic component to it, which requires an analysis of efficient outcomes and internalization of externalities?

These involuntary controls over the actions and property of others is a attempt to create a ownership of something that is utterly intangible.

We are talking about a manuscript, which is tangible in every way. If I make a copy of my original and transfer it to you under contract, wouldn’t I have the right, if you agreed, to impose limitations on the use of that tangible good, say to prohibit copying?

So, yes. If you have a secret and wish to get the agreement of a party before you reveal your secret to them… then if they agree to restrictions then that is fine and has nothing to do with copyrights/patents really.

If I understand you here, I think what you are saying that it would be possible to re-create the operation of copyright law without depending on the legal system, by way of making those provisions (i.e. limiting use) a term of the voluntary contract. In fact, they could co-exist (i.e. contract “copyright” and statutory copyrights).

However this is not the same as revealing your secrets to the world and expecting the whole of humanity to honor your restrictions involuntarily under the point of a gun: Which is what IP is

The difference is pretty obvious here. I don’t know what your missing.

What is that difference?

I think we are talking about the same thing; the private ownership of an original work of authorship (manuscript), in one case operating by the device of contract, and the other operating by the device of property rights. One does not exclude the possibility of the other, right?

nate-m April 22, 2011 at 4:30 pm

So you agree that I could re-create the entirety of the copyright code IF 1)it is copied verbatim into a contract, 2) required that any disputes will be decided according to existing case law, and 3) there is a presumption that the agreement is enforceable in some way that meets the expectations of both parties. Is that what you mean?
If other people want to voluntarily abide by your restrictions I don’t see any problem with adding it into a contract. If you/they agree to something similar to copyright code that is fine.

It is were you expect other people who never entered into agreement with you to be forced to involuntarily abide by restrictions is were the issue lies.

Would it be accurate to restate this using “property” instead of IP?

No.

If so, then aren’t you begging the question as to whether IP is or not property, since if it was, it would behave like property, and if not, it wouldn’t?

No. Property, as in physical property and property rights that are associated with it, have physical substance and nature that lends itself to that set of rules. Intellectual pursuits, information, concepts, etc. have a entirely different nature and thus have a different set of rules governing their use.

You cannot make IP behave as real property anymore then I can will ‘The Star Wars Extended Universe’ into physical reality. You can pretend, but pretending does not make it so.

And would you then agree that the rule that is employed has an economic component to it, which requires an analysis of efficient outcomes and internalization of externalities?

I don’t know were your heading off to, but since your basic premise is wrong then so is your logic.

If I make a copy of my original and transfer it to you under contract, wouldn’t I have the right, if you agreed, to impose limitations on the use of that tangible good, say to prohibit copying?

Sure. That would be fine.

But it still has very little to do with IP law. IP law is universal and involuntary in nature and is enforced (in every single possible case that it currently exists) at the point of the gun. What your talking about is voluntary agreement between two parties and that is entirely different.

If I understand you here, I think what you are saying that it would be possible to re-create the operation of copyright law without depending on the legal system, by way of making those provisions (i.e. limiting use) a term of the voluntary contract. In fact, they could co-exist (i.e. contract “copyright” and statutory copyrights).
Your almost there.

Copyright-law-as-extension-of-contracts is a classic Pro-IP libertarian approach to attempting to reconcile the issues of IP laws with the violations of property rights. This is really decades-old stuff here.

The idea is that if you agree to a contract stating that your going to abide by copyright-like terms then that contract can be extended for each copy. That is in order to make a copy of a book for a new person then that new person will have to voluntarily agree to the terms of the contract first and thus the contract will perpetuate to create a form of copyright-like restrictions. This is all fine and dandy and if a system of controls is setup then that is a good way of dealing with this issue.

It does nothing to support the argument that IP-is-property. The IP-is-property is entirely unrelated line of reasoning. This is copyright/patents-as-extension-of-contracts.

The problem is that these extensions-of-contracts do not apply cleanly to the current conception of IP. Which I will explain shortly:

What is that difference?

The difference is a issue of voluntary agreement. A voluntary agreement between two parties is ethical; a involuntary agreement inflicted on the whole of humanity by threat of force is not ethical.

Copyright-as-contract works fine if your copying a book, copying software CDROM, going to a closed performance of a movie in a movie theater and such things. In those cases it’s easy to get people’s consent and agreement to restrictions. That can work.

But it does not extended to people that never agreed to the restrictions. That is why it falls short of IP’s restrictions. It can look and act like copyrights/patents in many ways, but it is missing some important things that copyrights and patents do. Namely: copyright and IP is involuntary. It requires no action or agreement on the part of a person to be restricted by IP. This is were the copyright/patents-as-contracts falls flat.

If somebody leaves a book on a bench and is lost and forgotten then a third party can pick up that book and thus the contract exchange doesn’t extend to that third party since they did not enter into a contract voluntarily. They acquired the book through other legal means. So restrictions against copying that the contract imposes does not apply to them.

Another examples is that if you broadcast media over the air then people receiving that signal would be acquiring copies of the media without entering into contract. They pick up the signals completely regardless of any sort of equipment they possess. If they happen to have the ability to record the signals and translate them this does not equal entering into a contract.

The counter-argument against this is the so-called logo-rights. The logic is based on the assumption that ‘logo-rights’ can be a valid form of contract. That is if you put a contract on the front of the book, or during the broadcast of the TV show that says: “If you watch/read this then your entering into a contract and if you do not want to abide by the terms of this contract then turn it off now”.

I do not believe that is valid contract, however. It’s too involuntary.

Before you go off into a tear about this realize that this line of reasoning is based on contract law and not property rights. It in no way validates the notion that IP-is-property.

Wildberry April 22, 2011 at 6:45 pm

@nate-m April 22, 2011 at 4:30 pm

What part of this sentence to you object to, then?

Property seeks to institute a set of restrictions and controls on the physical activity of other people with their own property that are not only involuntary, but universal in nature.

No. Property, as in physical property and property rights that are associated with it, have physical substance and nature that lends itself to that set of rules.

Yes. A manuscript is a physical thing that can be owned, and as such can be governed by contract between parties, isn’t that correct? If I transfer it to you on the condition that you not make copies of it, is that a legitimate function of contracts?

Intellectual pursuits, information, concepts, etc. have a entirely different nature and thus have a different set of rules governing their use.

Perhaps, but I’m not asking about that. I am asking about a physical thing, an original manuscript, which I will transfer to you only on conditions that you agree to honor those limitations under consequences of liability to me for breach of that agreement. If you sign up for that voluntarily, is that acceptable to you?

It appears you agree here:

If I make a copy of my original and transfer it to you under contract, wouldn’t I have the right, if you agreed, to impose limitations on the use of that tangible good, say to prohibit copying?

Sure. That would be fine.

Then you say:

But it still has very little to do with IP law. IP law is universal and involuntary in nature and is enforced (in every single possible case that it currently exists) at the point of the gun. What your talking about is voluntary agreement between two parties and that is entirely different.

I understand you here to be making a distinction between the way contracts operate (requires privity between parties to be enforceable) and property which operates “universally”.

Would you agree this to mean is that it operates within a jurisdiction of property law, irrespective of privity.

For example, you don’t have to have a contract with a potential trespasser to exclude him. That is your property right. That is the distinction between a right that operates by contract and one that operates by property rights.

This is all fine and dandy and if a system of controls is setup then that is a good way of dealing with this issue.

OK, I want to come back to these words, “a good way of dealing with this issue” later. For now, without going any further, you agree that in a non-IP world, this contracting system is fine as far as respecting everyone’s rights as you understand them?

It does nothing to support the argument that IP-is-property. The IP-is-property is entirely unrelated line of reasoning. This is copyright/patents-as-extension-of-contracts.

Well, I mostly agree with you. Would you allow referring to this as a point of departure that could possibly lead to contradictory conclusions? In other words, before we go any futher and discuss IP as property rights, you agree that IP as contract, as we have defined it above, is OK?

The difference is a issue of voluntary agreement. A voluntary agreement between two parties is ethical; a involuntary agreement inflicted on the whole of humanity by threat of force is not ethical.

OK, I can think of ways that I agree with this, and ways that I don’t, so I guess there must be something else here. For example, we can voluntarily agree to kill Bill, but that is not ethical. Would it be ethical to defend the reason by force if you were Bill, even on the whole of humanity?

I think this is simply a restatement of a fundamental principle of rights; that all rights to act are limited by the rights of others to be safe from your harmful acts. If we define a “right to life” in A, and a “right to absolute use of property” to B, we hold that A’s rights in this case prevail and B’s actions are limited to the extent that they infringe on A. This is just one illustration of how all rights operate.

Likewise, if we define an “exclusive right to use and possess X” in A, and the “absolute right to use private property” to B, someone’s rights must prevail. A contract COULD establish those rights between the two contracting parties. But that is not done in relation to rights-to-life and rights-to-property conflicts. If we don’t use a contract, what do we use? Isn’t this one way to look at the concept of property rights; a device for assigning universal rights to individuals, conditioned by the rights of others?

Copyright-as-contract works fine if your copying a book, copying software CDROM, going to a closed performance of a movie in a movie theater and such things. In those cases it’s easy to get people’s consent and agreement to restrictions. That can work.
But it does not extended to people that never agreed to the restrictions

I think what you are saying is that for a small group, it is reasonable to expect to get people to agree to certain terms. In a movie theatre, you can get people to agree not to video tape the movie as a condition of entry. To use the precise economic term, the transactions costs (negotiation and enforcement) are low for such an agreement to be effective.

If we imagine another scenario, one that Coase made famous, where a train is throwing sparks and burning the crops of the adjacent farmers, we can illustrate the same point. If it is one train owner and one farmer, then they will be able to negotiate an agreement and arrive at an efficient outcome. However it if is a problem between one train owner and several hundred farmers, other problems arise.

In other words, the transaction costs (negotiation and enforcement) go up. You introduce free-rider problems, hold-out situations, etc. If it is 100s of people on each side of the issue, transaction costs are even higher. This is the problem of public choice and externalities.

That is why it falls short of IP’s restrictions. It can look and act like copyrights/patents in many ways, but it is missing some important things that copyrights and patents do. Namely: copyright and IP is involuntary. It requires no action or agreement on the part of a person to be restricted by IP. This is were the copyright/patents-as-contracts falls flat.

This post is getting long, so let’s stop at this issue. As you point out, where the contracting method falls short is the fact that establishing certain rights by contract, where the transaction costs are high, produces inefficient outcomes. It would be very costly to try to contract with every person in the world who is likely to trespass on your property. If you missed just one, they could trespass and there would be nothing you could do about it. This is one explanation for why trespassing is associated with a property right.

If somebody leaves a book on a bench and is lost and forgotten then a third party can pick up that book and thus the contract exchange doesn’t extend to that third party since they did not enter into a contract voluntarily. They acquired the book through other legal means. So restrictions against copying that the contract imposes does not apply to them.

Lost and forgotten property can be legally acquired by the finder consistent with the homesteading principle. But I think I get your point. If someone acquires material protected by a contract between others, I can’t impose the terms of that contract on the finder. Specifically, my agreement with you not to copy my book does not apply to the third person not a party to our agreement.

This is analogous to the trespassing example above. To be effective under a contract theory, you would have to contract with everyone who is living on earth, or you would always be at risk of having someone trespass upon your land with impunity.
This is precisely the issue that deserves more attention in the debate about IP rights and their legitimacy.

I would like to leave my comments here, and avoid for now discussing how logorights, or MCP, as Shulman is now calling it, fits into this exchange.

Peter Surda April 22, 2011 at 10:17 pm

Andras,

you keep asking what? How can you contract something you don’t own? That’s the first time I’m hearing it from you.

The answer is that you are using metaphors. I don’t know what the technical term for that type of fallacy is, but the formal representation is that there is an element X (e.g. writing a novel) that belongs to a set A (physical property) and also to a set B (IP). We claim that the membership of set A is the decisive rule for the question of property rights, but membership of set B isn’t. You say that we claim that because an element is in set B, it cannot be owned, but we also claim that it can be owned, therefore we contradict ourselves. But this is a logical fallacy. We do not say that elements from B cannot be property, but that the membership of that set is an irrelevant criterion. Furthermore, because all elements that are in B are also in A, the membership of set B can only be relevant if we make the membership of set A irrelevant (at least partially). Many IP proponents (especially the natural rightsers) deny this, so they contradict themselves. The utilitarians, on the other hand, do not explain how to mix the membership of set A and B into a coherent rule, nor how to evaluate the mix with regards to utility.

You’re a scientist. Surely you must be aware of the set theory. Deal with the above.

Andras April 23, 2011 at 2:12 am

Peter (Surda), I don’t know now who I am on a first name basis.
You keep clinging to the doctrine that property must be physical despite all the evidence against it. What about your money, or rather your currency, the dollar? Is it really physical? That piece of linen? A promise to pay you what in what? Another promise? Lies upon lies, still people hold it as property, I guess, you, too. Just think about it.
For Christians I can also give the examples of sales of indulgences. It started the whole Reformation.
Consequently, there must be something wrong in your logic. Maybe, just maybe, the boundaries of property are not so ossified. Maybe, every homesteading ripples through all existing property boundaries as all homesteading is arbitrary. Of course, with the biggest effects are in the neighborhood. Nowadays, you hardly see any physical homesteading. Not much left, and what left became the victim of the state. This is the reason you are so surprised when it happens when new IP is created. You have just no experience with it.

Contract works only in a pro-IP world. Please see my reply to Sione, too. Although that is for copyright I have stated it for patents before. It is valid to that as well. When (Stephan) Kinsella invoked contracts to allow co-operation keeping Trade Secrets as the only acceptable IP for him he fell into this trap, as well.
In brief: You can not contract what is not your property. Even the act of contracting discloses IP. Therefore, you loose it as your property (in a non-IP regime). Or saying it differently, no IP owner, inventor, in his right mind will contract (NDA, etc) his invention, even his simplified idea, if he can not enforce a breach of the contract. And since he is loosing it as his property by the very act of trying to save it he just will not do it! I know, I wouldn’t. Though, you can still hope!
I am observing it all the time: NO IP = NO COOPERATION!!
That is why anti-IP folks called neoluddites, their theories lead back to the stone age.

Peter Surda April 23, 2011 at 5:17 am

Andras,

Peter (Surda), I don’t know now who I am on a first name basis.

And you expect me to fix that? You do not provide any other identifier for yourself, apart from working in the biotech industry.

You keep clinging to the doctrine that property must be physical despite all the evidence against it.

On the contrary. I have been trying very hard to formulate falsifiable claims and challenging opponents to attack them. You and the other IP confusists on the other hand insist on a doctrine which none of you can even explain. Where’s the evidence? Nowhere. It’s just some made up metaphors, irrational outrage, the feeling of moral superiority, ad-hocery and then when all else fails you just run away from the debate.

What about your money, or rather your currency, the dollar? Is it really physical? That piece of linen? A promise to pay you what in what? Another promise? Lies upon lies, still people hold it as property, I guess, you, too. Just think about it.

You are yet again committing the error of thinking that a reintepretation of a phenomenon is a separate phenomenon. As I said many times before, unless any of those things you refer to can exist without any physical media whatsoever, then all you’re doing is reinterpreting. You are mistaking the meaning of a phenomenon for the phenomenon itself. How a scientist can do this grave error I cannot comprehend. This is the very thing science is supposed to combat. Just like there is no Thor or Zeus, there is no “immaterial homesteading”.

If contracts require IP, then what have the people been doing before the there was IP? What have I been doing my whole career? Magicking money and satisfied customers into existence?

Please, come to your senses, suppress your irrational emotions and show some real science.

Andras April 23, 2011 at 7:10 pm

Peter,
Do you have a bank account? If yes, do you believe that there is any physical media behind your numbers in that bank account? Then you are wrong! If you do not have an account, billions have and believe it, that makes the bank account valid, its content transferable. “Money” out of thin air. Voila, property without physical media.

Peter Surda April 24, 2011 at 6:30 am

Andras,

Do you have a bank account?

Not only do I have a bank account, I also used to work for a payment processing company, developing infrastructure as well as software. I think you just shot yourself in the leg, again.

If yes, do you believe that there is any physical media behind your numbers in that bank account?

Of course there is. Banks have computers, and before that they had paper files. Without either of those or a substitute medium (e.g. brain), there is no bank.

Then you are wrong!

Oh really? Well then, I wonder what did I get paid for? What are all those regulations and industry standards for storing, processing and transmitting data for? To make the air thinner apparently.

Voila, property without physical media.

There is no such thing. Without a physical representation, there is nothing, so there cannot be rights assigned to it either. What you call money is not, as you portray it, something that exists without any physical medium. Rather it is the meaning that the people ascribe to the physical medium. Some Austrians (not me) would disagree even with that and call it a fraud unless the “meaning” is offset by a deposit of an underlying commodity.

Do yourself a service and stop embarrassing yourself. Next time, think before you write.

Andras April 24, 2011 at 11:36 am

Peter
Do you still believe in the Tooth Fairy?
Yes, the bank is there, but it is (or they are all) bankrupt. Their vault is empty. It is all a mirage. And you were paid to keep this mirage believable. Have you heard these buzzwords: Fractional Reserve Banking? Or legal tender laws? Or quantitative easing? Or fraudclosure? etc. The whole global monetary system is based on this mirage and since people believe it the dollar becomes “material”, even for a fairly intelligent individual like yourself. So the real question is now will you be willing to see?

Peter Surda April 24, 2011 at 12:28 pm

Andras,

Do you still believe in the Tooth Fairy?

Why do you keep asking me these questions? You’re the one who proclaims belief in the imaginary.

Yes, the bank is there, but it is (or they are all) bankrupt. Their vault is empty. It is all a mirage. And you were paid to keep this mirage believable.

Again, this makes no sense in the context of our debate. You are the one who claims that imaginary things are real, and when I protest, you accuse me of passing off imaginary things as real? What the heck is going on in your head?

Have you heard these buzzwords: Fractional Reserve Banking? Or legal tender laws?

I discussed the two terms elsewhere in the comments on this website.

Or quantitative easing? Or fraudclosure? etc.

I did not address these points so far, but just like most of the people here probably do, I think it’s a scam. Not living in the US, however, I’m not getting overly agitated over them. The amount of US dollars I own is essentially a rounding error.

The whole global monetary system is based on this mirage and since people believe it the dollar becomes “material”, even for a fairly intelligent individual like yourself. So the real question is now will you be willing to see?

Why, thank you for thinking I’m intelligent, I quite appreciate it. As for the rest of your post, I cannot make any sense of it. We are not debating the monetary theory now, we are debating IP and the lack of coherent arguments from your side. Why did you bring up the monetary theory? Do you even understand that the anti-fiat anti-FRB position (which you appear to be taking, but it’s difficult to be sure due to the incoherence of your posts) directly contradicts a pro-IP position, for the same reason that you can’t inflate rights by making up imaginary stuff?

Andras April 24, 2011 at 1:36 pm

Peter,
No, it was just to show that there is property what is not physical/material. You forgot it in the heat of the debate.

Peter Surda April 24, 2011 at 9:58 pm

Andras,

for all the examples you mentioned, I provided a example of medium where the “immaterial” is stored, and explained that it must be stored somewhere for the whole duration of its existence. So please, stop making stuff up. Also, you phrase your posts in a very confusing way.

Anti-IP Libertarian April 23, 2011 at 8:48 am

You really must be stupid to not understand the following: You own your body and your physical property. Both themselves contain information in their own structure (their patterns are information – (changes of) patterns in your brain and in your physical property are information).
Information itself does not exist outside of physical property.

Therefore contracts are only about physical property (including self ownership). Nothing else is needed. Nothing else is relevant.

Kid Salami April 23, 2011 at 3:51 pm

“You really must be stupid to not understand the following:…Information itself does not exist outside of physical property.”

Information can be transmitted via a code and em waves and, if this information is deleted from the hard drive of the sender immediately, it does not exist on any “physical property” for a short time. So, one of these must be true:

1) you think em waves are always owned/ownable
2) you are stupid

Matthew Swaringen April 23, 2011 at 7:28 pm

This is kind of like if you have everything but the last bit of an encrypted zip file. You may have the password, but without that last bit you can’t decrypt the file and it’s contents are entirely unreadable.

Does that mean you have (most of) the information?

I also think it’s questionable to say “immediately.” In the real world what does that mean? It’s surely some fraction of a second during which you had the entire set of information on the physical media. You can’t delete something in 0 time.

Even if the argument is that the waves themselves do have the information absent physical media, I don’t see how this is all that relevant.

Kid Salami April 24, 2011 at 2:07 am

Wow, you can’t do something in 0 time! Really! Yes well thanks for the physics lesson but so long as you delete it before it is received at the other end, there is a period of time when you could argue that the information does in fact “exist outside physical property”.

Now this all depends on what, precisely, you mean by “information” and “exist”. The point is that Anti IP Lib, as usual for him and like many people who argue against IP here, don’t really fully understand the subtleties of the argument and are just repeating mantras. He made a catgorical statement and, further, said “you must be stupid” not to understand the statement – yet I think his statement is lacking essential details at best and false at worst. So I asked him to clear this up – he could start by defining “information” and “exists” and we could go on from there. Then we could check these definitions with his other statements and see if they are consistent with this other statements. This way we can see how, exactly who is “stupid” here.

If you think that the statement is complete/correct and that i’m wrong, please enlighten me.

Kid Salami April 24, 2011 at 2:23 am

“Even if the argument is that the waves themselves do have the information absent physical media, I don’t see how this is all that relevant.”

Anti IP also said below “Information (=patterns) is always (!) represented in physical property (including the human brain). There is no information without physical representation.” below. If this issue isn’t “relevant” then you should be asking him why he keeps saying it, not ask me why I’m challenging him to explain it.

Matthew Swaringen April 24, 2011 at 1:54 pm

Well, I am not sure what he would tell you but what I would say is that regardless of whether it can exist outside physical media it still isn’t scarce since it is copyable by it’s nature.

I think arguing against the metaphysical identity notion is really entirely unnecessary. It’s something that some of the IP advocates have concentrated on, but it’s not something every IP advocate finds to be necessary anyway. In fact, some of the IP advocates have even made a point of mentioning themselves that the information is always on some kind of physical medium. So I really don’t get why engaging them on that is helpful.

I wasn’t really sticking up for any particular person here, just looking at the idea of whether waves in transit really are the information itself or just a method by which the information is transferred from one media to another.

Peter Surda April 24, 2011 at 6:11 am

Kid Salami,

Information can be transmitted via a code and em waves and, if this information is deleted from the hard drive of the sender immediately, it does not exist on any “physical property” for a short time.

This is debatable, it depends on how you define physical property and information. Nevertheless, there are at least two alternatives possible without the dilemma you’re presenting:

- Information, while in transit, does not exist
- EM waves are owneable for the duration one claims that information exists

It’s a metaphysical question rather than one of property rights.

you think em waves are always owned/ownable

I respectfully disagree. From the point of view of a coherent property rights theory, the only requirement is that the em waves / particles are owned at the time of the reception. Whether they are owned while in transmit is irrelevant, and whether they are owned at the time of transmission is probably irrelevant too (I’m not entirely sure, I merely can’t think of a reason why it’s necessary).

Kid Salami April 22, 2011 at 2:02 pm

Stephan

You say

“the role of scarce means is to be employed in action causally to achieve a desired end; knowledge is used to guide the agent’s choice of ends and selection of means causally suited to help achieve the end chosen”

I have a question. If you intentionally (I use that word specifically, as per your “Causation and aggression” paper) corrupt the “knowledge” on which you know someone will base their decision on how to act and thereby end up with more of their property than would otherwise have been the case, can this be fraud?

Peter Surda April 22, 2011 at 10:28 pm

Kid Salami,

that is a really good question. But I have a counterquestion. If you intentionally provide someone with correct information, but it will be phrased confusingly so that the typical listener would surely misinterpret it, can this be fraud?

In other words, should it be relevant for fraud whether you provide correct or incorrect information? Shouldn’t it be rather relevant whether there was a coincidence of wants?

Kid Salami April 23, 2011 at 3:56 pm

“Shouldn’t it be rather relevant whether there was a coincidence of wants?”

I don’t understand this question or how it fits in to the question of fraud, could you expand.

Peter Surda April 24, 2011 at 6:15 am

Kid Salami,

potentially any action can under certain circumstances cause fraud, or a violation of property rights in general. Whether you present information that is true or false is per se irrelevant. The context is important.

Sione April 22, 2011 at 3:19 pm

Andras

There is not an IP burden on the little islands (or the Main Island for that matter) and IP monopolies are not granted or observed by the Matai, Ministers or anyone there. It is doubful many Pac Islanders have heard of “IP” let alone recognise its restrictions. Copying is something that is done when it is easier to copy stuff than not to. For example, at the private school they copy CDs and photocopy stuff for the kids. No issues or problems with it really. It’s just how things occur in daily living. Anyway, as with many common places, it’s a non-IP regime.

Siotu’s got some information that he wants to tell me about. He says, “Don’t tell anyone else what I tell you.” I agree to his terms. Siotu and I enter a contract. I receive his information and I do not to tell anyone else. I am his contractor in that I have contracted not to pass on what he has told me. He tells me his information and I keep it to myself.

Siotu does not own me and he does not own the content of my mind. Even though he has told me information which is part of the content of my mind, he does not own it (he does not own my mind or the information that resides within it). What Siotu has done though, is to contract with me to behave in a specific manner. In other words we have agreed on what each party is to do- how each is to act. So he tells me stuff about reality and I listen and I do not tell it to anyone else.

As it happens, Villiami was sleeping on the couch and neither Siotu or I had noticed he’d dropped by for a good feed, several stiff drinks and a bit of a kip to sleep it off. So he’s there, completely silent and wakes during the conversation. He overhears the information from Siotu.

Siotu does not own Villiami and he does not own the content of Villiami’s mind. Even though he has told information which Villiami has overheard and is now part of the content of Villiami’s mind, he does not own it (he does not own Villiami’s mind or the information that resides within it). What Siotu has not done is to contract Villiami to act in a specific manner. In other words there is not existing agreement on what each party (Villiami and Siotu) is to do- how each is to act. Villiami is non-contractor to Siotu. So Siotu, he tells me stuff about reality and I listen and I do not tell it to anyone else, but Villiami is free to tell anyone should he want.

Simple stuff really. There’s not contradictions to worry about. The issues are straight-forward matters of who enters agreement, the content and context of agreement and who does not enter agreement.

Sione

Andras April 23, 2011 at 1:12 am

Sione,
Your whole story is based on Siotu’s intention to make a contract. Why should he? What’s the point? How could he enforce it in case of a breach?
You can not contract what is not your property. The moment you disclose it, even by the very contract to save it you loose your “property”. Therefore, contracting can not be a choice under a no-IP regime. What remains is secrecy i.e., no co-operation or IP socialism as Wildberry stated.

Peter Surda April 23, 2011 at 4:58 am

Andras,

You can not contract what is not your property.

This is quite imprecise and also a logical fallacy. While it is true that you cannot sell what you do not own, that does not mean that all that you put into a contract is property. If you agree, for example, to abstain from walking for an hour and for that someone is going to pay you one dollar, that contract is valid although noone owns “walking” or “an hour” or “abstaining from something”. Rothbard calls this conditional transfer of title, if I’m not mistaken.

Please next time you post make sure that you have a coherent claim. You’ve been making vague complaints on the site for quite some time, but have yet to provide an explanation of your position.

Andras April 23, 2011 at 8:21 am

Peter,
“…noone owns “walking” or “an hour” or “abstaining from something…”
And what is the definition of is?
Contracting all your actions are all built on the ownership of self, thus property. Your very action of thinking about then going into contract is built on property! Beyond all that, how do you enforce it? You are going beyond comprehension to fool yourself.

Anti-IP Libertarian April 23, 2011 at 9:01 am

“The one thing that is simple about what you are illustrating is that agreements only bind the parities to the agreement, but is that always absolute? For example we don’t recognize contracts for murder as valid.”

Nobody is bound to illegitimate actions which are against the NAP.

“So even an agreement between two parties is subject to limitations in the absolute freedom to act,”
You are wrong insofar as the NAP is a necessary precondition of liberty (of more than one person).

That is no limitation post hoc.

“Or in the other example, would it be right for Villiami to be liable to the victim’s family who is murdered by Siotu?”

Only if Villiami had a contract with them regarding anything that has to do with their health. If Villiami has NO contract with them he is not obliged to inform them (whether he should have informed the potential victim or not is another question).

Peter Surda April 23, 2011 at 10:41 am

Andas,

And what is the definition of is?

What does it have to do with the flow of debate? Losing ground and dodging?

Contracting all your actions are all built on the ownership of self, thus property.

Exactly. You own yourself. You do not own various reinterpretations of actions, like labour or the fruits of your labour. First of all, it’s a non-sequitur, second of all, these might refer to other people’s property.

Your very action of thinking about then going into contract is built on property!

Exactly. Now, what does it have to do with IP, i.e. how do you derive the illegality of causally related actions from the ownership of oneself? Do you even agree that IP is the claim on causal relationships?

Beyond all that, how do you enforce it?

How do you enforce what? What does this have to do with enforcement anyway? You’re making completely incoherent statements, randomly jumping between vaguely related topics. The question is not how to enforce IP or contracts. The question is whether you have provided a coherent explanation of your position, which you haven’t.

You are going beyond comprehension to fool yourself.

I think I have expressed myself clearly, but if you don’t understand anything, just ask.

Furthermore, I have refuted your random claims: you don’t need to own something to put it into a contract, it is possible to have contracts without IP.

Last but not least, you call me a luddite, but on the other hand you advocate the detaining, robbing and/or imprisoning of people who “steal” your job or your customers. I don’t think a scientist can be this stupid. So I can just reiterate that you should leave your emotions behind and provide a coherent explanation of your position. Failing that, maybe you should go back home and keep an eye on your wife lest someone steals her too.

Wildberry April 23, 2011 at 12:31 pm

@Peter Surda April 23, 2011 at 10:41 am

you don’t need to own something to put it into a contract, it is possible to have contracts without IP.

It is true that contracts need not be about IP, but then contracts may be about IP, and in fact you have agreed that it is possible to do everything that IP laws do by way of contract between two parties. I think you called it to “mimic IP”. That’ s close enough.

A contract is about mutual assent for performance and consideration. Yet in all cases their subject matter is owned by the parties. You cannot bind a third party to a contract between principals.

In your example, you show your misunderstanding about contracts.

A, who will abstain from walking, may do so because he owns his ability to perform such a promise. If will is unalienable as Rothbard asserts, then no one can make him walk if he doesn’t want to, and no one can else can promise he won’t walk if he wants to.

B owns the dollar.

Therefore the contract between them presupposes ownership of what each is promising.

Surly you have a better example to show that contracts do not require ownership?

Anti-IP Libertarian April 23, 2011 at 12:44 pm

“contracts do not require ownership?”

Contracts do require ownership: Ownership of the physical property (including self owned bodies) involved (participating parties and/or physical property).

Information (=patterns) is always (!) represented in physical property (including the human brain). There is no information without physical representation.

Additionally the interpretation of information only happens in human minds (in their brains). So you really want to own the brains of others?

Wildberry April 23, 2011 at 4:59 pm

So you disagree with Peter Surda then?

Peter Surda April 24, 2011 at 6:38 am

Wildberry,

but then contracts may be about IP

This is a misleading way of putting it, for the reason I explained before. It’s a word play.

Yet in all cases their subject matter is owned by the parties.

This is a metaphorical construct. Merely because you put a certain noun into the contract, it does not mean that that noun refers to your property or is the subject that the contract is referring to.

Therefore the contract between them presupposes ownership of what each is promising.

No, it does not. Even if we eliminate bets, which not only do not require ownership but also do not require the ability to influence the outcome, we still have the problem of deceptive language described above.

Anti-IP Libertarian April 23, 2011 at 9:08 am

“Your whole story is based on Siotu’s intention to make a contract. Why should he? What’s the point? How could he enforce it in case of a breach?”

Why should someone design gardens? Create hairdos?Why should someone make a stage performance? Why should anyone do any work if its not based on a monopoly? Ask yourself.

How he enforces his contracts is his to decide. Your argument sounds like that of people in favor of unions.

Sione April 23, 2011 at 4:28 pm

Andras

The situation pertaining between me and Siotu demonstrates that your previously posted objection to non-recognition of IP fails. There is no contradiction in contracting in a non-IP regime. That was the issue I was addressing in response to that previous post of yours. Let’s move on and consider what you are now asking.

Siotu does not need to make a contract with me. There is no need for him to do that. He could come right out and tell me the information without conditions should he like. In that situation, since we would not have agreed who is to do what, that would leave me in exactly the same position as Villiami. That is, I can tell anyone what I have heard from Siotu.

You asked why Siotu should enter into a contract with me. Clearly the reason is that he does not want the information relayed by me to the other people. If he wants me to hold the information and not broadcast it, then he needs to gain my assent to behave in a specific manner (or not to, as the case may be). Thus he requires agreement- he needs to make contract with me. That is the point. If Siotu wants me to act in a certain way, he needs my agreement to so do.

In the case of breach there are many things that could occur. It depends upon the exact context and specifics of the situation. The sanctions are many and various. Were I to broadcast what he and I agreed would not be broadcast by me, he would then know not to trust me in future. He certainly could immediately act to damage or ruin my reputation in business, family matters and socially. He could come up to the house and publically make accusations or even demand a fight. He might refuse to deal with me ever again (which would be a big problem as he is the guy who owns the only wharf with a decent hiab near the village). He might decide that since I didn’t hold to the terms of an agreement, then he shouldn’t bother to honour the other agreements or contracts we already have (hence I would not be repaid on a private loan). He might explain the situation to his associates and colleagues and encourage them to do the same. That is, not to honour agreements they have with me. The breach with Siotu would become a problem- exclusion, ostracism, non-observation of agreements, withdrawal of trust, ruined reputation, expenditure of time, vexations, opportunity costs, objectionable trouble all over the show. Anyway, why even set out to break one’s own agreements in the first place? Hardly logical to do that. There are consequences.

I note you are proposing that contracting between parties is not possible in a non-IP regime. It is very difficult to take such an irrationality seriously. Think about what you are promoting. It is a nonsense.

When I contracted with Siotu I was contracting my property and I was doing it in a non-IP regime. I was contracting my physical self. I personally agreed not to act in a certain way. I agreed not to use my person (my body) to undertake a particular behaviour. I agreed not to tell anyone what Siotu said to me. My body is not IP (not even the most dedicated pro-IP fanatic has proposed the notion that my body is IP, as far as I know). My body is my personal property. I am free to contract with Siotu as I own myself. The idea of IP is irrelevant to we two making contract.

The notion that contracts are not available in a non-IP regime is false and, worse than that, illogical.

What remains is that Siotu and I are civilised free men. We do not need to agree to everything the other requests. We may negotiate and agree to contract or we may negotiate and not agree to contract on any particular occasion. For both possibilities we co-operate in that we act in a particular manner, each treating the other in a particular manner- never initiating force, fraud or coercion, one upon the other. We both know that whether we make agreement today to do something or not, there will be other opportunities to interact with each other in the future and/or with other people. Making agreements and voluntary arrangements is far from socialism. The existence of people voluntarily so doing for mutual benefit does not justify the imposition of socialist interferences, such as the usual IP regimes, upon all.

Sione

Andras April 23, 2011 at 7:38 pm

Could you simplify your statements and questions?
I just want you to go back and think about what was the original intention behind making a contract. Of course, you can contract anything. But we were talking about a trade contract. Here, to have a MEANINGFUL exchange/trade contract both sides need to control what they enter into that contract. So the original intention was between the partners to transfer something non-material. A transfer from the owner (seller) to the non-owner (buyer). If the seller of this non-material discloses it he will loose control of it as noone recognizes it as his property in a non-IP regime. Here, what was transferred has no value even if you put any nominal value in the previous contract as the seller can not enforce it. Proportional punishment calls for no punishment. It only depends on the buyer what happens to the transferred non-material. Only trust keeps this together. I believe it will not be enough. After all, even under a pro-IP regime contracts are questioned and breached. Huge downside, almost no upside for the seller. The potential seller will simply avoid any disclosure, even contracts or as I showed above, especially contracts. Thus, no contracts (involving non-material information) in non-IP.

Sione April 26, 2011 at 12:40 am

Andras

I spent some time thinking about your position and recent contributions to this thread during the holiday break. I even went & asked a few associates what they thought. In the end I decided to make the effort to point out that you are treating enquiry into this topic in erroneous fashion (right from inception) and illustrate a few of the problems with the approach you have chosen. There is a bit to consider.

The transaction between me and Siotu is simple enough. I’ve related it as clearly as possible. It isn’t complex and shouldn’t be difficult to grasp and understand. He offered to tell (tell, not sell) me information so long as I agreed that I would not tell it to other people. He owns his body. I own my body. He contracts with me to behave in a certain manner (tell me some stuff) with the proviso that I behave in a certain manner (do not tell other people). We voluntarily agree to act according to this arrangement. Contract is made. Now each acts according to the contract he has made with the other. No IP-regime required. Simple.

Notice that there is no need to impose the notion of IP upon Siotu or me or anyone else. We voluntarily agreed what we were going to do and did so. The contract was made and it exists in a non-IP regime. There is no contradiction. This completely rebuts your stated position. Simple.

Now you’ve since invested in some little effort insisting that such agreement as exists between me and Siotu is not “enforceable”, the implication being that it need not be honoured because of an insisted unenforcability. According to you the parties can’t be adequately “punished” for transgressing the terms of contract. Somehow punishment (as adjudged by you to be adequate else it doesn’t count, one surmises) is a necessary and fundamental attribute of contracts and agreements. Punishment as a necessary component of contract… Crikey Dick! Bring out Madam Lash! Non-presence or inadequate presence of punishment according to your assessments somehow invalidates contracts. Andras, you can insist on what you like all you like but you’ve already been shown to be wrong. Read again what I wrote previously. Seriously, go read it.

Remember, were I to break contract there would be consequences. They would impose upon me a high cost indeed. I’d rather not have to deal with such consequences. I’d rather not lose Siotu as someone I can work with and trade with and associate with. I’d surely not want him as an enemy and I’d definitely not want the loss of trust and reputation I’d suffer all round the show were I to cheat him- expensive opportunity costs would accrue against me for a very long time to come… No thanks!

First point to realise is that your position is already void. Contracting between parties for the purpose of information exchange can and does occur in a non-IP environment. There are not contradictions.

Now, expending greater and greater effort to hold onto your erroneous position is analogous to the attempt to gain firm purchase on a turd. See, turds are not very solid. As you increase your efforts to get a tight grip on one what is going to occur is that it is going to extrude through your fingers, squirt onto your clothes and dribble onto your shoes. You are going to end up covered in….. turd. Everyone will see (and smell)! It is a far better idea to drop your turd into the can long before you get to that squirty, dribbly stage. Do the same with faulty notions- into the can with ‘em, IP and all.

Second point for you is that the contract between me and Siotu is a trade contract. I am trading a freedom to act in a specific manner for the provision of some information. Further, the information Siotu reported was in regard to his business- an important trade related matter for which I can now appreciate the reasons he did not want it spread about. He sought advice from me.

Third point, when you introduce the term “MEANINGFUL” you are discussing an arbitrary. It’s a slippery wet term (remember you can’t grip on a turd). One asks, MEANINGFUL according to whom? To Siotu? To me? To some non-participant in the contract? To you? What about the government of Tuvalu? The Pope? The Great Council of Chiefs of Fiji? The World Intellectual Property Organisation? Prime Minister Putin? Madam Lash? Who is it that has the glorious right to power to impose their subjective evaluation of what is MEANINGFUL and impose it across all other people? The correct answer is that no-one does. No-one should have such a power either. For a start none are omniscient, omnipotent and all good.

Forth point, and this is a real biggie, you are assuming what you are setting out to prove. That’s an invalid approach. It is not possible to validate a contention as true by simply assuming that it is true. Circularity alert! Circularity alert! In this case the pretense is that the transaction is a purchase with a buyer and a seller exchanging an ownership in property. What you are assuming is that what was exchanged is actually property. The rest follows from that sneaky wee unjustified step. What you actually need to set out to do is to prove your contention in the first instance. Of course, you haven’t done that. Likelyhood is that you can’t.

The forth point is a critical one. For some reason, assuming the contention is a popular means IP promoters like to employ when attempting to argue the pro-IP position. You should never engage in such as it suffers from significant drawbacks such as these. It is obvious to the reader and it fails to validate the position. It can’t. So, don’t engage in it.

Fifth, this contract was not a sale and purchase. There was no buyer and no seller. This was an agreement where two free men, owners of their own persons, agreed how each would behave. One agrees to pass information on to the other. The other agrees not to tell it to anyone else. Then the one passes information to the other and the other keeps silent. Both retain ownership and hence control over themselves. The contract is about what each will do with his own property- his body. Simple stuff. By the way, this is a common commercial arrangement and it does not require an IP-regime to operate successfully. Again, this voids your stated position.

Sixth, the value of the information exchanged between Siotu and me is determined by Siotu and me. It’s a subjective valuation. As it happens, Mises writes about valuation and also about subjectivity in relation to valuation. Do go take a read.

Note that it is not available to you or anyone else to claim a right to control the passing of information between other people on the basis of your necessarily arbitrary valuation of the information being conveyed- information that you do not even know the substance of. Look, you do not know what subjective valuation Siotu made of the information and you also do not know his subjective valuation of the consequences upon him of it becoming widely known. You do not know his valuation and reasons for imparting the information to me. You do not know my valuation of the information. You do not know my valuation of the consequences of receiving it or of my valuation of the consequences likely received as the result of breech of contract with Siotu. You don’t know the any of it….. and yet, you madly crash on, ravin’ about punishments, value, proportionality and so forth and so on- all constructs of arbitrary self-serving rationalisation and nonsense. Watch out! That turd is about to be high-pressure-a-squirting from between your fingers. Pooh!

Seventh, the clear implication of your latest post is that you require a powerful third party to all contracts as a necessary. This party is to be granted the privilege of controlling them all, also controlling all participants and non-participants alike. It is to hold the power to enforce terms according to its opinions and its arbitrary regulations and its rulings and its interests and it is to do all this by force of punishment (something of a socialist fetish, this imposition of force and punishment of other people stuff- why does it appeal so?). What you really should consider is that no such uncivil nonsense is necessary at all. As demonstrated, people can and do make arrangements to deal with sensitive matters and information in the absence of the notion of IP and of IP regulation. Often they do it in spite of such things. They do not require compulsory socialist impositions by non-involved third parties.

An aside-
REGARDING TRUST

Some things for your future dealings in life. You do not want to be learning these the hard way.

No matter how clever the lawyers you instruct, no matter how densely fine-grained and prescriptive regulations and laws might be, no matter how sophisticated any contract that can be generated, in the end what holds a relationship together, especially a commercially successful one, is trust. If there is lack of trust, then a contract won’t hold for long.

Always come to a contract negotiation with clean hands. That is, do not set out to cheat the other party. Don’t void contract from inception.

Whatever you do, someone knows & others soon can find out. Upon such your reputation is built. Upon such others determine how they will treat you.

A negotiation is about achieving a meeting of the minds, a situation where we both say, “YES”. It is a process to achieve a deal we can both benefit from, not one where one party sticks it to the other. I’ve heard many people boast about how they screwed someone else in a business transaction (funnily enough, I’ve not heard anyone say the same thing about their marriage contract- there is a lesson in that) and I’ve discovered that such people are either full of piss and bad manners (big noters, wide boys and spivs) or deceitful fraudsters (rorters and crooks) or incompetent. Not trustworthy. Best avoided.

Worrying about punishments and the like at the start of a relationship means that you’ve already lost it- there parties are not aligned, the relationship is not good and is unlikely to succeed in its stated endeavours and goals. The vast majority of contracts that fail do so, not for reasons of poor contract drafting etc, but because the parties fail to act to keep their relationship intact and their interests aligned. They fail to act to attain that which they originally represented they wished to attain.

If trust is not enough, nothing will be.

Over thirty years in commercial activity confirms what I’ve written about trust and contract here. There is something else to bear in mind as well. You have but one life to lead and to perfect. It is yours. Understand that people will judge you and treat you according to how live your life, in other words according to how you act. Keeping your word is a part of what they’ll evaluate you upon. They award their trust to you according to what they understand you to be likely to do and according to what they perceive you to be. The consequences of people judging you to be untrustworthy and not someone worthy of their confidence are very serious penalties to suffer.

End of aside. Now, to conclude.

Our exchange was initiated with your statement regarding a so-called contradiction with contracting to the behaviour of parties privy to confidential information in a non-IP regime. As explained to you at the time and since, it requires no IP-regime (or notion of “IP”) for such contracts to exist & for them to be honoured. There is no contradiction.

Arguing by insistence, which is what you have been doing, does not justify the imposition of an IP-regime upon all of us.

Assuming what you need to prove does not validate your position.

What you are ultimately arguing in favour of is the imposition of a socialist interference into everyone else’s business, trade, personal life, privacy etc. That is unjustifiable.

Sione

Wildberry April 22, 2011 at 3:51 pm

@Sione April 22, 2011 at 3:19 pm

Copying is something that is done when it is easier to copy stuff than not to. For example, at the private school they copy CDs and photocopy stuff for the kids.

I am wondering where the original CDs, etc. came from? Are they authored locally?

Siotu’s got some information that he wants to tell me about…Villiami is non-contractor to Siotu. So Siotu, he tells me stuff about reality and I listen and I do not tell it to anyone else, but Villiami is free to tell anyone should he want.

This is a good story. Does it matter in any way what the information is? For example, if it was important economic information, and you were careless in guarding it, causing a big loss for Siotu and a big gain for Villiami, or Siotu was planning to commit a murder…Do these facts change the duties of any of the parties?

The one thing that is simple about what you are illustrating is that agreements only bind the parities to the agreement, but is that always absolute? For example we don’t recognize contracts for murder as valid. So even an agreement between two parties is subject to limitations in the absolute freedom to act, to the extent they infringe on the rights of non-parties, correct?

Would you agree that a breach of such an agreement would need to have consequences such that the expectations of the non-breaching party are guaranteed by the breaching party?

For example, if you were careless with the confidence, would it be fair that you compensate Siotu for his losses? Or in the other example, would it be right for Villiami to be liable to the victim’s family who is murdered by Siotu?

Anti-IP Libertarian April 23, 2011 at 9:02 am

“The one thing that is simple about what you are illustrating is that agreements only bind the parities to the agreement, but is that always absolute? For example we don’t recognize contracts for murder as valid.”

Nobody is bound to illegitimate actions which are against the NAP.

“So even an agreement between two parties is subject to limitations in the absolute freedom to act,”

You are wrong insofar as the NAP is a necessary precondition of liberty (of more than one person).That is no limitation post hoc.

“Or in the other example, would it be right for Villiami to be liable to the victim’s family who is murdered by Siotu?”

Only if Villiami had a contract with them regarding anything that has to do with their health. If Villiami has NO contract with them he is not obliged to inform them (whether he should have informed the potential victim or not is another question).

Anti-IP Libertarian April 23, 2011 at 9:31 am

To the IP proponents:

You favor “information property”. What about privacy laws?

J. Neil Schulman stated in another thread something about a woman owning information about her body (nobody was allowed to photograph her without her acceptance).

What about extortion in regard to certain personal information?
http://www.cbsnews.com/stories/2010/03/09/entertainment/main6282408.shtml
http://abcnews.go.com/Entertainment/david-letterman-admits-sexual-affairs-staffers-details-extortion/story?id=8728424

Wildberry April 23, 2011 at 12:14 pm

For those still interested in this exchange, the following is the question I have posed, and have yet to see a response from IP opponents.

I am wondering how Kinsella’s position can be reconciled with the problem of producing for external economies as described by Mises and elaborated by Coase and others?

Anthony April 23, 2011 at 2:17 pm

As long as the actor accrues some benefit to himself, whether others also benefit from the act is inconsequential.

For example, if I hire a violinist to serenade me at a restaurant, does it matter if non-paying people hear the song too? If I am the only one paying and 50 people are listening the musician (or I) are “producing for external economies”… so what? I am getting what I want and the musician is getting paid. The same thing applies with writing. If I write a book and I convince 10 people to buy it, the fact that 100 people elsewhere read my book for free does not change the benefit that I or the 10 purchasers get from the book.

Even producers of physical property are producing for “external economies” all the time. If I make a bucket of paint and sell it to someone who paints his house, everyone who sees the house will benefit even though they did not pay for the paint. Maybe 10000 people will see the house and get enjoyment out of it, even though only one person bought the paint. Should I stop making paint because I am producing mostly for external economies?

It is an indisputable fact that many people continue to produce IP even if they have absolutely no expectation or desire to enforce their “right” to prosecute people who access their information without permission. That alone should provide an answer to the problem of external economies.

Wildberry April 23, 2011 at 3:26 pm

@Anthony April 23, 2011 at 2:17 pm

As long as the actor accrues some benefit to himself, whether others also benefit from the act is inconsequential.

Yes, I agree this is the standard of measure. If the benefit, for the most part, accrues to another, then the benefit is external to the actor.

Would you agree then, that an economic policy that is consitent iwth Austrian free-market principles would seek to avoid externalities that exceed mere incidental benefit?

Specifically, if an author produces a manuscript, which he owns, and when attempting to trade it in the markt, finds that the benefits accrue to others for the most part, is that a problem?

To use one of your examples, if I hired a violinist, and everyone but me benefited, is that an economic problem that should be solved in some way? Or, if I hired a painter, and he painted someone elses house instead of mine?

It is an indisputable fact that many people continue to produce IP even if they have absolutely no expectation or desire to enforce their “right” to prosecute people who access their information without permission. That alone should provide an answer to the problem of external economies.

I don’t think it does. There are individuals who denounce all material endeavors, and seek to live an aesthetic life. Does this negate the possibility that there others who endeavor to gain a profit from their actions? Does renouncing a personal need for private property negate the concept of private propety in general?

Anti-IP Libertarian April 23, 2011 at 3:11 pm

Someone hires the most talented garden designer to improve the design of his garden and you as someone just strolling by see this garden after its enhancement and are pleased by what you see.

Do you owe the designer or the owner something for your pleasure?

Wildberry April 23, 2011 at 3:31 pm

@Anti-IP Libertarian April 23, 2011 at 3:11 pm

If I hire someone to design my garden, and he does, then it is true that, for the most part, I have received the benefit I paid for. The fact that someone else also benefited is incidental.

In addition, given that the garden is mine, I may choose to exclude other’s enjoyment by building a high wall, or I may decide that is not necessary. But I maintain the right to exclude others, and the benefit to me was internal, for the most part, not external.

I did not hire a garden designer only to find that he designed someone else’s garden. In that case, the benefit of hiring him woud be external to me, right?

Anthony April 23, 2011 at 4:34 pm

Your analogy of the designer making someone else’s garden or the musician playing for someone else is flawed. In those cases the purchaser receives nothing, in which case you are correct that the person buying someone else’s garden would be producing for an external economy.

In the case of IP, on the other hand, the author will always accrue some benefit from their work, be it the initial sale or the fame that comes from success or the opportunity to ask higher wages in the future. As the owner of a garden you do indeed have the right to build a wall around it, just as an author of a work has the right to use DRM, or limited showings, or any number of other methods to exclude third parties.

IP law is different, though. IP law is the equivalent of making it illegal to look at a man’s garden even if he does not put up a wall. Or making it illegal to look over his wall by climbing a tree (that you own). In both cases you are violating my right to use my body or my property in the name of reducing “external economies”. That is why most of us here object.

If the owner of a garden wants to be the only one to see it then they can do their best to enclose it using their own resources. If the author of a piece of software wants to determine who can or cannot use their program then they can take the same types of precautions. In both cases a good was produced that could benefit third parties. In both cases the purchaser gets what he paid for and the author/creator gets the agreed upon fee. Why should the law provide special protection for the software and not provide the same protection for the garden?

Wildberry April 23, 2011 at 5:41 pm

@Anthony April 23, 2011 at 4:34 pm

Your analogy of the designer making someone else’s garden or the musician playing for someone else is flawed. In those cases the purchaser receives nothing, in which case you are correct that the person buying someone else’s garden would be producing for an external economy.

I specifically used the phrase “for the most part” to address your objection above. It is possible to move the needle between “absolute benefit” to “almost no benefit”. So, let’s not quibble about that.

If the buyer receives the benefit of the bargain, for the most part,, then the benefit can be said to be internal to him, OK?

In the case of IP, on the other hand, the author will always accrue some benefit from their work, be it the initial sale or the fame that comes from success or the opportunity to ask higher wages in the future. As the owner of a garden you do indeed have the right to build a wall around it, just as an author of a work has the right to use DRM, or limited showings, or any number of other methods to exclude third parties.

Do you subscribe to the theory of subjective value? If so, then it would be up to the owner of property to determine how he values his goods. In addition, his calculation is based on things knowable to him. One of those things includes the conditions upon which his sale depends. The theory of private property rights implies that the owner of that property is entitled to determine for himself what the subjective value of that property is in relation to offers to purchase it. Do you agree?

Second, I agree that there any number of technical approaches available to accomplish secrecy. I am asking what happens when my intentions fail, say because you devote your energies to defeating my measures? I am asking where you imagine those boundaries of private property to be. If you defeat my best attempts to maintain a secret, do I lose my right to exclusive ownership of what was my property before you acquired it against my desire and intentions?

As for the rest, I think it is premature in this discussion to attempt to resolve what IP law is or is not. But I do want to extract this one sentence from what follows:

In both cases the purchaser gets what he paid for and the author/creator gets the agreed upon fee. Why should the law provide special protection for the software and not provide the same protection for the garden?

I think you are glossing over something important here. How can an owner of private property engage in an economic calculation of subjective value if the conditions of his property rights to his goods are unknown?

In order to reach an “agreed price”, don’t both actors require knowledge of the economic conditions of transfer, including the rights of private property? How can you assume that a price can be agreed without this knowledge in advance?

In the case of the garden, if someone looks in and I don’t like it I can build a wall at that point. Or if despite my wall, someone sees, I can make it higher.

In the case of my manuscript, once you have it, I can’t get it back. That is the equivalent of saying that if anyone ever spies my garden, I am no longer entitled to build a wall.

Is that what you mean to say?

Anthony April 24, 2011 at 12:41 am

Wildberry,

“If the buyer receives the benefit of the bargain, for the most part,, then the benefit can be said to be internal to him, OK? So, let’s not quibble about that.”

My instance on the fact that the buyer and seller both benefit from the transaction was not intended as quibbling. I chose my examples carefully (listening to a song in a crowded room and painting a house that thousands see) specifically because “for the most part” the benefits of the song and/or the pretty house were realized by third parties. If 50 sets of ears benefit from a song that I paid for, how can you say that the I received the most part of the benefit?

With regards to your second argument, am I correct in interpreting it to mean that it would be difficult for an author to engage in economic calculation if he/she did not know the rights he/she had regarding IP? I can certainly agree that it is important that all parties are aware of their rights before the transaction takes place, but I don’t see how a problem with acting under uncertainty as to the validity of IP can be an argument in favor of either IP or its lack.

As for the subjective theory of value, I do indeed accept it, and I also accept the right of an author to make any valuation of his work that he chooses. Even without IP it would definitely be profitable to be the first to buy a good manuscript and the first to publish the work… the same way it was profitable to do so in England before modern IP.

With regards to your final bit about the garden wall, I think the analogy may be stretched about to the limit but I will give it one more go:

“In the case of my manuscript, once you have it, I can’t get it back. That is the equivalent of saying that if anyone ever spies my garden, I am no longer entitled to build a wall.”

The real equivalent is saying that if someone got a glimpse of your garden and took a picture (without trespassing), you would not be entitled to stop them or anyone else from distributing the pictures. You can still build your higher wall, but the pictures are already out of your control.

To anticipate the objection that pictures are not the same as seeing the action garden the way that a copy of, say, software, is the same as the original, let me say that there ARE differences between the original and the copy. For one thing, the people buying the original know that they are supporting the author, and many people would be willing to do so despite additional costs. For another thing, the author can offer things like updates or tech support (in the case of software) that are not available to the owners of unauthorized copies.

One final word regarding morality: the guy who climbs a tree to take pictures of a private garden is definitely being an asshole. If you want to condemn him for being immoral then I think that many people would support you here. Where we differ is that while you think that he was acting illegally and should be forcibly punished or prevented, most of us here would say that he did not actually initiate force against anyone and thus he should not be subjected to force.

I think that cheating in a relationship is immoral but I don’t think it is a crime. Perhaps the same could apply for violating IP…

Wildberry April 24, 2011 at 12:36 pm

@Anthony April 24, 2011 at 12:41 am

If 50 sets of ears benefit from a song that I paid for, how can you say that the I received the most part of the benefit?

If you got what you bargained for; as long as you got the benefit as you intended to receive them, the fact that others also benefited is immaterial.

With regards to your second argument, am I correct in interpreting it to mean that it would be difficult for an author to engage in economic calculation if he/she did not know the rights he/she had regarding IP?

Regarding the decision to disclose the manuscript on any terms, yes.

I can certainly agree that it is important that all parties are aware of their rights before the transaction takes place, but I don’t see how a problem with acting under uncertainty as to the validity of IP can be an argument in favor of either IP or its lack.

I am not arguing that at the moment. I am only saying that praxeology requires that the actor have some basis for acting rationally. If he is going to be surprised at the outcome of the transaction he was intending to make because he misunderstood his property rights, for example, then next time he would act differently. Do you agree?

This is not to say that everything must be certain, only that the fundamental conditions of trade must be understood by both parties before a calculation of subjective value can proceed. Do you agree?

As for the subjective theory of value, I do indeed accept it, and I also accept the right of an author to make any valuation of his work that he chooses.

OK, we agree then up to here?

Even without IP it would definitely be profitable to be the first to buy a good manuscript and the first to publish the work… the same way it was profitable to do so in England before modern IP.

You make too many assumptions here to make a reasonable response possible. You do not know how an IP-free world would operate, you have to speculate.

If you are going to use 18th century England as an analogy, then we have to assume that only the technology available then and the monarchy as the governmental institution would be present in the world you imagine, just to name a couple.

The real equivalent is saying that if someone got a glimpse of your garden and took a picture (without trespassing), you would not be entitled to stop them or anyone else from distributing the pictures. You can still build your higher wall, but the pictures are already out of your control.

You are correct, I think. Therefore can we presume that the owner of the garden would take this into consideration, and if secrecy was really important to him, then he would build a wall first? In that case, the only way to see the garden would be to trespass.

In the case of trespass, would you allow that the owner would have the right to impose an injunction on the trespasser regarding further disclosure, as part of the remedy for his trespass?

As to the following comments you make, you are right, at some point the analogy run into difficulties. One cannot “copy” a garden without planting one. Yet you can “copy” a story without having to re-write it.

Where we differ is that while you think that he was acting illegally and should be forcibly punished or prevented, most of us here would say that he did not actually initiate force against anyone and thus he should not be subjected to force.

You are opening a new topic; the fuzzy nature of boundaries between competing or conflicting rights. Let’s save that for another time.

I think that cheating in a relationship is immoral but I don’t think it is a crime. Perhaps the same could apply for violating IP…

Well, you are making a distinction between ethics and law. Not every act of immorality rises to the level of illegal conduct. We have thresholds, which usually involve pecuniary loss. But you raise a good point.

Why can we distinguish between an immoral act and an illegal one? Why is cheating immoral? I suspect that breaking your promise is considered a bad character trait at any level.

I have used the tort of trespass to illustrate this point in legal terms. Originally, trespass was a way to resolve fuzzy boundaries in land. The issue was how much damage was required in order to make it a tort. Gentlemen did not want to cause damage in order to bring it to court, so one would politely step onto what was clearly the property of another, and they would enter suit. Since damage is one of the elements of the tort, the question was how much damage?

The common-law answer was that all trespass causes damage, even if it is bending a blade of grass. It was customary under such circumstances to award nominal damages of one shilling. But damages was not the objective, having a legally binding boundary line was the point.

This is the issue you raise. We could continue to split hairs in the garden/trespass analogy ever finer. In reality, these issues have been resolved in common law, but that is beyond the scope of our discussion.

Peter Surda April 24, 2011 at 9:23 pm

Wildberry,

If you got what you bargained for; as long as you got the benefit as you intended to receive them, the fact that others also benefited is immaterial.

So, as long as an author can sell his manuscript or copies thereof, it is immaterial whether he can exclude others from competing with him? Well then, bye bye IP.

Peter Surda April 24, 2011 at 10:15 pm

Wildberry,

If he is going to be surprised at the outcome of the transaction he was intending to make because he misunderstood his property rights, for example, then next time he would act differently. Do you agree?

Exactly. That’s the argument against IP from the point of view of catallactic efficiency: it makes it less predictable which actions are legal and which not, and increases the time preference.

You do not know how an IP-free world would operate, you have to speculate.

Earning money through “mental labour” without the use of IP is all around us. Some of us IP opponents do it deliberately even: we’re finding new ways of satisfying customers better than our competitors.

It is you who is speculating. You make up a fairy tale about what IP should be and should do, which is on one hand illogical and on the other completely different from the one that exists. The truth is out there for everyone to see. There is no magic in it, no metaphysics, no ivory-towers-armchair-philosophing. Just open your eyes! If IP was a crucial component of our society, we’d all be extinct by now.

nate-m April 24, 2011 at 11:15 pm

Earning money through “mental labour” without the use of IP is all around us

Exactly.

A easy example of this is music. Country Western, Bluegrass grew up on a tradition of doing covers. Well known songs reinterpreted over and over again. A strong tradition of music dating back to even before America with their music history rooted deeply in Irish folk songs.

New songs are created from old ones, repeated, changed, reinterpreted. New meanings and new art developed created by leveraging established memes and common/popular musical experiences that are filtered through new experiences and new interpretations garnered from the gradual changes in our culture.

This American tradition of doing cover songs and reinterpreting songs created some of the most beautiful, deep, and enjoyable music ever created. There are as many different interpretations of a song as there are people willing and able to play it.

This American tradition completely and utterly decimated by IP law.

Looking at art through history it’s just gradual evolution. Artists taking ideas, reinterpreting, leveraging new innovations created by their peers and then creating new works based on old ones.

All this is gone. Legally denied to us for the sake of the various publishing industries.

Music artists still make their money the same way as they always have: Through live performances. Even very popular bands make almost nothing on record sales. With a few exceptions of bands that lasted a long time and were able to afford to hire quality lawyers to renegotiate new contracts… they would make more money working as a manager at a 7-11 then they would from selling albums. Even if they get platinum.

The whole system is a scam. They rip of artists and they rip of customers.

A big example of this is Merle Haggard:
(The numbers reflect the peak in US Country Studio Albums)
Strangers – 1965 #9; Swinging Doors – 1966 #1;I’m a Lonesome Fugitive – 1967 #3;Branded Man/I Threw Away the Rose – 1967 #1;
Sing Me Back Home – 1968 #1 ;The Legend of Bonnie and Clyde – 1968 #6; Mama Tried – 1968 #4;Pride in What I Am – 1969 #11;Same Train, A Different Time – 1969 #1;

A Portrait of Merle Haggard – 1969 #3;A Tribute to the Best Damn Fiddle Player in the World (or, My Salute to Bob Wills) – 1970 #2; Hag – 1971 #1;Someday We’ll Look Back – 1971 #4;Let Me Tell You About a Song – 1972 #4;It’s Not Love (But it’s not bad) – 1972 #1;I Love Dixie Blues – 1973 #1;If We Make it Through December – 1974 #4;
Merle Haggard Presents His 30th Album – 1974 #1;Keep Movin’ On – 1975 #1;

It’s all in the Movies – 1976 #1;My Love Affair with Trains – 1976 #7;The Roots of My Raising – 1976 #8 ;A Working Man Can’t Get Nowhere Today – 1977 #28;My Farewell to Elvis – 1977 #6;I’m Always on a Mountain When I Fall – 1978 #17;Serving 190 Proof – 1979 #17;The Way I am – 1980 #16;Back to the Barrooms – 1980 38;Big City – 1981 #3;
Going Where the Lonely Go – 1982 #3;That’s the Way Love Goes – 1983 #8;
It’s All in the Game – 1984 #1;Kern River – 1985 #8 ;

Out Among the Stars – 1986 #15;A Friend in California – 1986 #2;Chill Factor – 1987 #8; 5:01 Blues – 1989 #28 ;Blue Jungle – 1990 #47;1994 – 1994 #60; 1996 – 1996 (did not place)

Those are his studio albums up until the year 2000.

Do you know how much he received from IP royalties from those albums?

$0.00.

He didn’t make a dime directly from record sales until he signed with a independent punk rock record label.

From:
http://www.gerryhemingway.com/piracy2.html

Courtney Love’s letter warning new artists about the crooks.

RECORDING ARTISTS DON’T GET PAID

Record companies have a 5% success rate. That means that 5% of all records released by major labels go gold or platinum. How do record companies get away with a 95% failure rate that would be totally unacceptable in any other business? Record companies keep almost all the profits. Recording artists get paid a tiny fraction of the money earned by their music. That allows record executives to be incredibly sloppy in running their companies and still create enormous amounts of cash for the corporations that own them.

nate-m April 24, 2011 at 11:19 pm

Oh another fun quote:
http://www.gerryhemingway.com/piracy.html

Today I want to talk about piracy and music. What is piracy? Piracy is the act of stealing an artist’s work without any intention of paying for it. I’m not talking about Napster-type software. I’m talking about major label recording contracts.

Basically albums and singles were created with the intention of using them for promotional material for selling tickets to artist performances.

It’s still that way, more or less. Music artists make (as a general rule) almost nothing from copyrights. They make more money from T-Shirt sales.

So if you really want to support a artist, by a ticket, go to the show, and purchase a t-shirt. They will make more money from that then anything.

Unless they are their own publisher, of course.

Anti-IP Libertarian April 23, 2011 at 3:47 pm

“In addition, given that the garden is mine, I may choose to exclude other’s enjoyment by building a high wall, ”

The same is true for other information (=patterns) which is instantiated in physical objects: If you do not want others to hear music you paid for or you composed then keep that music for yourself by building a “sound wall” (whichever wall that may be). Shielding information is your task if you do not want to share it.

If you do not hide this information then it’s your fault if someone else copies your products or is pleased about what he hears, sees and so on.

Another example: If someone forgets to pull his or her curtains (eg in a flat) does not mean that any pedestrian walking by and getting some information this way about that person or his or her flat has to forget that information or is not allowed to use this information in any legitimate way.

Wildberry April 23, 2011 at 4:17 pm

@ Anti-IP Libertarian April 23, 2011 at 3:47 pm

Yes. This is what I believe Kinsella would call a failure of a technical solution designed to keep the information secret, or option 1). Failure leads to option 2), as you rightfully indicate.

Another example: If someone forgets to pull his or her curtains (eg in a flat) does not mean that any pedestrian walking by and getting some information this way about that person or his or her flat has to forget that information or is not allowed to use this information in any legitimate way.

Yes, I think I get your point. This is another example of failing to keep private information secret. Once disclosed, there is no taking it back, or option 2); it is in the public domain.

This does not resolve the issue, however. You are simply testing the boundaries of the expectation of privacy. This goes to the extent that one would have to go to maintain privacy. To the extent someone took reasonable measures, then there is the possibilty that getting the information despite my measures makes you a “peeping tom”.

The anlogy to IP would be, if I took extrordinary measures to keep my information secret from non-contracting parties, and you found some way to defeat those measures, would there be any theory that you would become the equivalent of a peeping tom? Does my intention to keep it secret have any bearing on the morality of the situation?

Edgaras April 24, 2011 at 9:02 am

“The anlogy to IP would be, if I took extrordinary measures to keep my information secret from non-contracting parties, and you found some way to defeat those measures, would there be any theory that you would become the equivalent of a peeping tom?”

YES! If one trespassed your private property. Broke into your house/computer and stole your painting/music/book etc. That would be a crime.

Wildberry April 24, 2011 at 11:31 am

@ Edgaras April 24, 2011 at 9:02 am

YES! If one trespassed your private property. Broke into your house/computer and stole your painting/music/book etc. That would be a crime.

Yes, I agree. If you defeated my security measures, say broke my encryption, or defeated my DMCA protected device, that would be a crime, then?

If not, what’s the difference?

Peter Surda April 24, 2011 at 12:37 pm

Wildberry,

breaking encryption or violating DMCA does not require a violation of your property rights. It can be accompanied by one, but it’s not a necessary requirement. It’s another imaginary right that the IP confusers pushed through the legal system. Breaking encryption is just performing mathematical calculations. Why should that violate anyone’s rights? 2 + 2 = 4, off to jail? Violating DMCA is possible, for example, by writing a software. What should that violate’s anyone’s rights? 10 GOTO prison?

nate-m April 24, 2011 at 1:26 pm

The DMCA does not just make breaking encryption illegal.

It makes _having_the_capabilities_ of breaking DRM illegal.

DRM is NOT encryption. Most DRM schemes do use encryption as one of their items, but it does not depend on encryption. It _cannot_ depend on encryption.

This is technical stuff, but it’s core to understanding why DMCA really does and what is the true purpose behind it:

1) Encryption does NOT need legal protections. By the nature of mathematical realities: If the encryption is correct it is secure. It is possible to make correct encryption. Therefore you can depend on the security if your encryption if you utilize it correctly. We do not know if we have correct mathematically correct encryption (with one exception), but for the all intents and purposes… it’s good enough.

2) Encryption is useful for a lot of things and it is worthless for others. It is not a silver bullet.
We use encryption for things like:
Confidentiality — keeping secrets secret
Authentication/Identity — securely identifying the source of data
Integrity — making sure data is correct. That is making sure that it’s not corrupted or tampered with.

Different encryption schemes can attempt to provide one of the items, two of the items, or all three of the items.

3) In the case of DRM schemes it’s used for confidentiality. That while the data is _in_transit_ it keeps it secret. However for media to be played on your TV or out your stereo it must be decrypted first.

That is encryption can be used for securing communication, but it cannot be used to control the use of information AFTER it has been decrypted. You still must trust the other party. Once they receive the message they can do whatever they like with it. The goal of DRM is to prevent this. That is the goal for DRM is to control information once it has been decrypted. The DMCA laws are a necessary component of it. Without the DMCA then DRM would not be feasible.

4) How DRM really works is not through encryption. It’s through secrecy, government control of markets, threats, and violence.

How it works in a technical sense:
1. Encrypt your media using a master key. It will require a keypair to decrypt it.
2. Sell the encrypted media out in the open market.
3. Sell the hardware/software capable of decrypting and playing back the media on the open market.
4. Provide the keys necessary to decrypt it to your customers. Either embedded directly into the hardware in 3, or have the hardware download the keys on the fly over a network.

So in order for people to view your encrypted media you first must sell them the hardware capable of decrypting the media and then provide them the decryption keys.

In order for DRM to work then you must keep how the computer works a secret. If you do not keep it a secret then users will simply hack the hardware or software and retrieve the keys themselves. It’s impossible to have a open DRM scheme.

The problem is that individuals willing to hack and play around with the software are able to devote much more time, resources, and intelligence to hacking your hardware/software then you are able to devote to keeping it secure.

Thus for DRM to really work you need to have government enforcement. The DMCA is a core component of any successful DRM scheme.

The DMCA makes it illegal to produce hardware or software that is CAPABLE of breaking DRM schemes. It is also illegal to discuss, in technical detail, how specific DRM schemes work, or to share information with other individuals on how specific DRM schemes work. The DRM specifics must be kept secret in order to be effective.

You do NOT need to break encryption to violate DMCA. You do NOT need to pirate movies or violate copyright to violate DMCA. The DMCA exists to make sharing information illegal. It makes distributing the ability to violate DRM illegal.

Effectively what this does is that it through copyright and patents it gives the big media companies the ability to dictate hardware and software design to other companies. If you do not produce hardware and software that fits into the requirements of these media companies then the Federal government will prosecute you. If your a foreign company it will ban the importation of your products into most markets and the USA Federal government will use it’s influence to try to require your government to destroy your company.

That is the ultimate purpose of DMCA. It provides the ability for media companies to dictate the design of hardware and software in such a manner that it maximizes their potential for profiting.

It really is very ineffective against pirates. The reason is that due to the nature of digital media once you have one unencrypted copy of a media you can make a nearly infinite number of unencrypted copies for pennies. Pirates willing to violate copyrights will also be willing to violate DMCA secrecy laws. It’s really just about controlling markets and controlling what is and what is not allowed to be sold in stores.

DRM requires massive violations of property rights to even function. Copyrights don’t even enter into it really. Copyrights are just a excuse.

Wildberry April 25, 2011 at 12:33 pm

@nate-m April 24, 2011 at 1:26 pm

This is all very interesting, really. But I wonder if you aren’t missing the fundamental point? You know, the forest-for-the-trees thing?

Isn’t the issue here a private property issue, not the technology scheme deployed to protect it? I mean whether you use a wooden fence or hi-tech lasers to enforce the perimeter of your property, the justifiability of you methods still rests on the right to exclusive use and possession, right?

So doesn’t all of this just beg the question of whether there is a right underlying these methods?

Peter Surda April 27, 2011 at 4:33 am

Yes Wildberry,

you’re missing a fundamental point. If there is a right, then the legally relevant question is not how it is violated, but if it is. That is why all your incoherent claims should be rejected outright, even withing having to discuss what they actually mean.

Wildberry April 25, 2011 at 1:16 pm

@Edgaras April 24, 2011 at 5:26 pm

Consider this, you have a house with big windows. I like watching other people, so I buy binoculars to watch you from my house. I am being an “ass”, but I do not violate your property rights. You know this, so you buy cotton curtains, to shield the view from the outside. But hey, I am smart, I buy special binoculars that can see through your cotton curtains (some X-Ray technology). Now I “broke” your “security”, but did I commit a crime again? No. I am again being an ass and I should be probably avoided and blacklisted in the internet or whatever, but no damage was done to your property. Privacy haven’t become a property just because you tried to secure it. Same with patterns and ideas. Just because you try to protect it, breaking that protection down is not a violation, unless it is done on your private property (breaking into your house or computer).

First, didn’t we agree that analogies have limits? But let’s see if we can squeeze any more meaningful information out of this one.

There are legal and ethical rules that are “bright lines”, and those that are fuzzy. In the case of fuzzy lines, some arbitrary decision must be made. Hopefully that decision while arbitrary, is rational, and attempts to strike some reasonable balance between conflicting rights of the parties.

In your scenario, you like watching other people, so you are asserting your right to “see”. You are free to see anything in the public domain, and no one can restrict you.

I like to have some privacy, so I assert my right to privacy. In part, this right is protected by the rights of private property. I can retreat to my house and you cannot trespass. I am free to withdraw myself from the public domain by enclosing myself in private property.

But I like to see too, so I put windows in my house. And I look out, and see that you have binoculars focused on my every move. I’m creeped out so I put up curtains. You find a way to defeat these means. We have an “arms race” with me taking more and more elaborate steps to insure my privacy, and you take more steps to defeat my every move.

Our rights conflict; the boundaries of my rights to privacy and your right to see are in conflict. How do we resolve this? We are both asserting legitimate rights, yet they cannot co-exist without this conflict.

One approach is to follow a “reasonable person” standard. If we say we each have the rights we claim, then the boundaries of those rights must be reasonable in relation to what a reasonable person in similar circumstances would view as reasonable. This is an objective standard, meaning that most people, given the facts, would be able to recognize what is reasonable. In other words, it is common sense.

This kind of thing drives mathematicians, (and natural rights advocates) nuts, but it is a common approach in resolving just these kinds of conflicts over the fuzzy boundaries of rights.

At some point, you are just being an ass, as you say. For example, staring at someone on a bus may be annoying, but not illegal,(it is prudent not to annoy someone predisposed to kicking your ass, though). If you grope someone, you have crossed a “reasonable” line. Accidentally bumping into them is not over the line. Common sense.

In our analogy, it is a concept of reaching a balance between a reasonable expectation of privacy, and a reasonable freedom of movement (seeing). Of course, you don’t need to go to court to make someone understand you don’t like to be groped or stared at, but at some point, it may be necessary in order to assert your legitimate rights, which can be violated on either side of this issue; I can insist on privacy that is unreasonable, and you can insist on freedom of movement that is likewise unreasonable. Cooperating humans have a way of working these things out.

Fundamental to this issue of fuzzy lines is the bright line rule that I have a right to privacy (to withdraw) and you have a right to see all that is not private.

By analogy, all this discussion about IP really comes back to the bright line distinction as to whether the producer of an intellectual work (copyrights and patents) has legitimate ownership rights to his product. If the answer is yes, then we can proceed to the fuzzy line issues of the boundaries of those rights in relation to the rights of others, i.e., there is a right to “privacy”. If the answer is no, then there are no fuzzy issues; there is an absolute right to “see” or “privacy”.

In reality, just like the privacy analogy, IP is an attempt to trade off the conflicting rights of ownership (i.e. exclusive use and possession) to the rights of access, (i.e. non-exclusive use and possession), both of which have reasonable support in common sense.

So after all of this, we arrive back where we started. 1) I own my work and may choose to keep it secret, in which case my ownership is undisputed, or 2) I can disclose it and forego my rights to own my work, or 3) something else that is a blend of these two options.

According to Kinsella, there are only 1) or 2). I disagree.

Señor Peligro April 25, 2011 at 1:30 pm

Hey shit-heel, who says you own your own “work”?

Edgaras April 25, 2011 at 3:18 pm

“In your scenario, you like watching other people, so you are asserting your right to “see”.”

There is no such thing as “right to see”, why you keep confusing the matter and talking in double speak? I thought you agreed, that the only right there is is not to be aggressed upon. You can put it in few other ways, but everything comes down to NAP (even though I don’t believe, that NAP is sufficient principle for free society to flourish, but that’s beside the point now)

But you keep inventing those mystical rights… It’s confusing. There is no right to privacy, again, you with your own language. I am actually wouldn’t be surprised if you advocated “right to education” at this point. You really don’t seem like a libertarian at all.

“Our rights conflict; the boundaries of my rights to privacy and your right to see are in conflict. ”

Gibberish.

Wildberry April 25, 2011 at 6:04 pm

@ Edgaras April 25, 2011 at 3:18 pm

Not so fast, quick draw.

If I restrict your freedom of sight, wouldn’t that be an act of aggression? So if you insist in putting things in terms of NAP, that works.

If you penetrate my private space, that is a violation of NAP.

So, what are you so thrown by?

For your information, not that it’s that relevant, I don’t think NAP alone is adequate, but who cares? NAP is secondary to the existence of rights; rights are primary and msut be understood before you can apply the principle of non-aggression.

But for our purposes here, it is sufficient, since all rights are human devices, and are fundamentally derived from right to self, from which follows rights to life, liberty and property.

Perhaps you can try a little harder to see more than the least in what I’m saying.

Ther is no such thing as absolute liberty. Even a man alone must conform his acts to the laws of nature.

So if you don’t like this, ““Our rights conflict; the boundaries of my rights to privacy and your right to see are in conflict. ”, then give me your own rendition. It was your analogy.

That fact is that our rights to act are always constrained by the rights of others. That is the boundary of absolute liberty. Isn’t that pretty obvious?

Edgaras April 26, 2011 at 8:15 am

“If I restrict your freedom of sight, wouldn’t that be an act of aggression? So if you insist in putting things in terms of NAP, that works.”

hahaha, that’s very ambiguous way to put it. Better say if you are initiating FORCE against me or my property or not? You dishonestly and clearly on purpose keep confusing simple words with such sentences so that I always have to nitpick like that and translate it in English.

If you “restrict” this freedom in your OWN property, then it’s never an act of aggression, come one, this is libertarian blog, we are not newbies here. If you did this on MY property, my house or in my sight (followed every my step and holding an umbrella in front of me, two inches from my nose), that would be an act of aggression and violation of my rights. But no “freedom to sight”, but rights against my property, my body or my house.

“If you penetrate my private space, that is a violation of NAP.”

Penetrate how? Try using normal words. Is that penetration physical or just imaginary, for example, you feel discomfort of me simply living near you? If you mean physical penetration, then yes, I agree with you here. Also, private space is another double speak invented by you to confuse the discussion and avoid talking about principles. Is that private space on your property or maybe it extends into my own house and my own binoculars? haha. Funny, isn’t it.

I won’t answer to the rest of your post. You managed to confuse it already so now first you need to understand all that is above before we may continue discussing your imaginary “rights to privacy”. Try again inventing similar “right” and I am seriously done arguing with you.

Wildberry April 26, 2011 at 10:58 am

@Edgaras April 26, 2011 at 8:15 am

First, I cannot take account of the fact that English may be a second language for you. I am unable to pick words that you understand, since I don’t know you.

Second, I think you forgot what we were arguing about. Property rights are not absolute, even if you want to make them appear that way by trying to project the simple case of physical trespass to any and all other issues affecting property rights.

If you want to know more about what I’m talking about, read up on the nuisance problems in property law. Coase was inspired by this area of the common law, and had some rather important things to say about externalities and the economics of law. David Friedman’s book is one of the best recent books on this subject.

If you don’t deal with this issue in IP, you are simply assuming away the problem, which is common, so I don’t expect you to respond any differently than you have, although I would find it a pleasant surprise.

Regards,

Edgaras April 26, 2011 at 11:43 am

“First, I cannot take account of the fact that English may be a second language for you. I am unable to pick words that you understand, since I don’t know you.”

It isn’t my native language. But you can’t pretend that you don’t understand what I am saying and ignore my clarifications of your own wordings (interpretations of my situations). Which are confusing, to say the least.

“Property rights are not absolute”

I am not sure I agree with you, even though I am not propertarian anarcho-capitalist at all. I think NAP is necessary but not sufficient principle. But again, what this has got to do with arguing what those property rights are? Saying that they are not “absolute” only can mean, that you can violate them to achieve your desired ends. Am I right? What else could that mean?

I am not anti-IP, I just don’t believe in it. I find lack of evidence in support of necessity and even existence of such property rights. Actually I haven’t heard any consistent theory of IP (even if we decided, that it is necessary to invent them), that’s why I don’t believe in it, but I am open to possibilities that maybe somehow this gap between physical property and digital information can be bridged (if that’s correct chosen words).

Wildberry April 26, 2011 at 1:42 pm

@Edgaras April 26, 2011 at 11:43 am

OK, in addition to the normal communication problems associated with discussing such a difficult topic, we have a language issue. It might have been helpful to indicate that. At least take some responsibility for the possibility that this is causing some of your difficulty, rather than to impute the difficulty solely to me, who is a native speaker.

I know an old Lebanese woman who doesn’t speak a bit of English. She was being cared for by a Philippina who spoke broken English. They had difficulty communicating, naturally, and the old woman was becoming frustrated. She was asked in Lebanese what the problem was. She said in Lebanese, “This woman can’t speak English at all!” We laughed for a week.

That said, no matter what language is your first, I’m sure I would be at a much greater disadvantage if we were conversing in yours.

I am not sure I agree with you, even though I am not propertarian anarcho-capitalist at all. I think NAP is necessary but not sufficient principle. But again, what this has got to do with arguing what those property rights are? Saying that they are not “absolute” only can mean, that you can violate them to achieve your desired ends. Am I right? What else could that mean?

I cannot understand what you believe and why you believe it because you use some incomprehensible labels you use to describe yourself.

What I mean is exactly what I said. One of the issues with all property rights is that, depending upon the specific property, the boundaries are more or less fuzzy. Land boundaries are “fixed” except for the island that “floats” down the river or the airplane that files overhead, or the mine that crosses under. They are not absolute in their boundaries. Rights may be bundled in some cases (land) but not in others (chattel).

If you do not understand that, you cannot intelligently discuss one of the most difficult concepts in property rights, IP.

I am not anti-IP, I just don’t believe in it. I find lack of evidence in support of necessity and even existence of such property rights. Actually I haven’t heard any consistent theory of IP (even if we decided, that it is necessary to invent them), that’s why I don’t believe in it, but I am open to possibilities that maybe somehow this gap between physical property and digital information can be bridged (if that’s correct chosen words

To be honest, I have no idea what this means; you are not against IP, you just don’t believe it exists? What evidence have you considered? How much have you studied the various theories or proposals for the legitimacy of the concept of IP?

The more you ask and think about it, the more difficult it becomes. Insisting that it stay simple and elementary is just being naïve.

Nothing personal, I am just speaking plainly and directly.

Peter Surda April 26, 2011 at 11:15 pm

Wildberry,

I am unable to pick words that you understand, since I don’t know you.

…..

Second, I think you forgot what we were arguing about. Property rights are not absolute.

A perfect example of a demagogue. You complain that the other party may have problems understanding you correctly, and subsequently you use vague language and repeat a phrase that has been criticised already for this reason in the past. If other people were not attempting to debate seriously, this might be considered funny.

Peter Surda April 27, 2011 at 5:31 am

Wildberry,

I like to have some privacy, so I assert my right to privacy.

You said a couple of months ago that disliking something does not mean that someone violated your rights. So, stop contradicting yourself, and stop making up stuff.

Our rights conflict

No, rights do not conflict. Actions conflict.

We are both asserting legitimate rights, yet they cannot co-exist without this conflict.

There is no “right to privacy” as such. If there was, it would contradict the right to private property.

One approach is to follow a “reasonable person” standard.

One approach, which you are taking, is to make up stuff. The other one is to provide a coherent argument.

conflicts over the fuzzy boundaries of rights.

There is no issue over fuzzy boundaries here, rather the issue is you making up stuff. Receiving photons that you reflect is not a violation of your rights, there is nothing fuzzy about it.

I can disclose it and forego my rights to own my work

Disclosing does not forgo any rights. The rights remain exactly the same regardless whether you disclose something or not. Stop confusing the issue. What you forgo is an opportunity, and there are no rights in opportunities.

Of course, we all know that you are not really making errors. You’re deliberately lying. But for the sake of scientific approach I’ll address them as errors.

Peter Surda April 27, 2011 at 5:39 am

Wildberry,

That fact is that our rights to act are always constrained by the rights of others.

Rights are not constrained. Acts are constrained. Stop making stuff up.

Edgaras April 24, 2011 at 5:26 pm

I precisely said “private”, not imaginary property. Just because you create a DRM for your pattern, it doesn’t become more tangible property than other patterns in a world. Yes, nobody can force you to reveal the information, patterns or any other data, but that would be violation of your ownership of your body (and mind), not ownership of “your ideas” which are practically floating from one person’s head to another one’s, no force required, because when I learn something from you, you still have that info yourself, not like in those analogies of bikes, cars or houses.

Consider this, you have a house with big windows. I like watching other people, so I buy binoculars to watch you from my house. I am being an “ass”, but I do not violate your property rights. You know this, so you buy cotton curtains, to shield the view from the outside. But hey, I am smart, I buy special binoculars that can see through your cotton curtains (some X-Ray technology). Now I “broke” your “security”, but did I commit a crime again? No. I am again being an ass and I should be probably avoided and blacklisted in the internet or whatever, but no damage was done to your property. Privacy haven’t become a property just because you tried to secure it. Same with patterns and ideas. Just because you try to protect it, breaking that protection down is not a violation, unless it is done on your private property (breaking into your house or computer).

Martin Bormann April 23, 2011 at 5:32 pm

This might be of interest, although I’m pretty sure John Kennedy is a tool:

http://www.springerlink.com/content/an343203j7835245/fulltext.pdf

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