Do you think this is some kind of head-shot? You are simply doing the same thing I suggested Colin was doing, which is making assumptions about what I do and don’t think from the questions I’m asking. Would you respond to a question on the witness stand of “Do you see this man anywhere in the courtroom?” by saying “Don’t you know him? He’s your client? Do you need glasses? He’s right there? Jesus – judge, I think this guy is losing his marbles, he can’t find his own client.”

You are now claiming that I advocate for forcing people to do things they don’t agree to. Let’s be honest – you know perfectly well that I don’t think that.

Actually answering the question in a manner becoming of the scholar you claim to be might have been nice. Had you simply said “yes, it is option three”, I could have pointed out how I don’t agree that the situation is as clear as you suggest and that there are still similarities between the two scenarios that require explanation. As it is though, i still don’t know your answer, since all you did was put words in my mouth.

I’m just trying to pin you down precisely on this issue and focus the debate, and as I think that your case relies largely on a bait and switch between the precise meanings of words, I am trying to get you to agree with exact words that I can take issue with.

You though are refusing to be pinned down. It’s funny, I’ve watched you debate a large number of “ideas can be owned” shouting douchebags for inordinate amounts of time. Maybe I’m not worth it because i’m an idiot and not worth responding to. Or maybe it’s something else?

Glad you agree. so you admit it’s disingenuous to say that IP can be created by contract.

Ah, “disingenuous”? I think you are saying here and below that IP can be created by contract, but who would bother under your rules of property. I agree with that.

This is why you say there are only two options under your property rules; 1) keep it to yourself (secret or contract) or 2) deposit it into the public domain (recognize no property rights if disclosed)

I don’t say this exactly, I mean who knows what intermediate things you can work out by contract etc. Up to the entrepreneur.

Yes, that would be option 1. The range of possibilities are vast and pointless; as pointless as trying to make a contract with a publisher in the absence of copyrights.

Since this destroys, for the most part, anything like an economic interest in writing books, we will, according to AET, have fewer of them. I get that.

I don’t agree there woudl be fewer books. We know that copyright prevents the publication of some works–sequels, derivative works. And it also imposes billions of dollars of cost on the economy, i.e., impoverishing us, and in its absenc,e with more money, there would be some people on the margins who are not writing now b/c they have to work ar egular job, etc., but who could afford to with the additional resources available absent copyright’s “tax.” Further, more money in the hands of consumers means more money to buy books. So you cannot assume there would be fewer works absent copyright. Nina Paley had a devil of a time making Sita Sings the Blues b/c of copyright; a lesser artist would have given up. But absent copyright lots of projects that are now dissuaded, or too costly, would be viable.

Wow, really reaching for that one. Of course the sequels and derivative works can’t be sequels or derivative works without a prior existing original work, right?

As for the billions in costs, that must be balanced with SOME amount of benefit. After all, Amazon alone did nearly $10B in sales for the first quarter of 2011. Did you figure that in? Do you think copyrights cost consumers $10B in legal costs in three months? Of course with more money to buy books because of the “copyright tax relieve”, all that extra money is sure to go into buying books, assuming there are any to buy. You know this how?

I am asking you if the legal concept of servitude is analogous to the operation of IP laws, in your opinion. It seems that way to me.

A servitude is a limited right to use a scarce resource. E.g., you are the naked owner of a tract of land, and I have a servitude to drive over a portion of it, say to get to my own driveway.

A patent or copyright gives someone the right to veto how another person uses their own scarce resources. So it is like a “negative” servitude except that it is not voluntarily negotiated.

“Negative servitude. A PREDIAL SERVITUDE “impos[ing] on the owner of the SERVIENT ESTATE the duty to abstain from doing something on his estate.” La. C.C. art. 706.”

Although I understand your point to Kid Salami about the difference between rape and consensual sex, I will simply observe that a servitude is not renegotiated each time title passes. That is because it passes by operation of law. When you buy the land, you accept the burden, voluntarily. When you buy a book, you accept the burden of copyrights. Those are the terms under which it is offered. As you have said elsewhere, there is no way to buy a book that is not burdened by copyrights.

So again, what’s the difference?

One small legal quibble: I think of what you call a “limited right to use” as an easement, and is imposed by the owner of property W on property B, the dominant parcel burdens a servient parcel with a limited right of use. A servitude is a limitation on the right to use your own property, like limiting building height or what color you can paint your house. There are no dominant or servient parcels. I guess that is why there are two words, and not one.

In the context of copyrights, one could say that I sell you a book with an “easement” to the work; I grant you limited use of my property. Or, one could also say that the ownership of a copy of my book comes with a servitude, limiting what uses you can enjoy. When you buy the book, you accept the burden because you have notice.

From the viewpoint of the operation of law, what is wrong with this analogy? Both are conditional transfers of property rights by operation of law.

the fundamental issue, as I wrote even back in my 2000 article on LRC, http://www.lewrockwell.com/kinsella/kinsella2.1.1.html , IP sets up a second homesteading rule that undermines the Lockean one of first use. All IP is a disguised way of stealing and reassigning ownership to scarce resources. If you have a copyright, it means you own some of my money (if I do X) or you own my printing press, since you can tell me what not to do with it (unless I pay you extortion-ransom).

I beg to differ. Lockean homesteading deals with first use. You cannot possess a specific book unless it is written first. There is no way you can possess a copy of something “first”. A copy of a work can only be derived from a pre-existing work. A derivative work can only be derivative of something that already exists.

In a Lockean sense, the original homesteading act must be the act of authorship to create the original work. Only if this original work already exists, and it cannot exist without an author, can copies or derivative works be produced.

If I have a copyright, it means that your possession of that protected work is being made available only on condition that you accept the burden of the limited terms of use. How is it that you can claim to have received it under those terms, and then claim that by asserting those terms, I am “stealing and reassigning ownership”?

And why is the operation of law under copyrights any different than the operation of law under the doctrine of what you call a “PREDIAL SERVITUDE”?

In an IP free world people are free to use their own property, so long as they do not invade the borders of others’ owned resources/bodies. they do not need permissio. They can use whatever ideas or knowledge they have to guide their actions, or to decide what ends to pursue or means to use to achieve their ends. In an IP free world the first guy to build a log cabin can’t tell me not to build one, since when I build one, I am not trespassing on his property–his use of his own log cabin is undisturbed. As I am not committing trespass he has no right to stop me, and if he does, he is the aggressor, not me. IP legalizes what would otherwise be a a crime.

Unless you believe that in the libertarian world, everyone should be free to own their own nuclear bomb, you are merely engaging in your own side of a utilitarian argument about what is “good”.

If you are making the utilitarian argument that without IP, we are all better off, I beg to differ; it seems to me the principle that people should own what they make with their own means is pretty “Libertarian”.

But to return to the fundamental point; if you buy a piece of property burdened with a servitude, is it legitimate to then claim that to conform to that burden is a violation of your rights, because “people are free to use their own property so long as they do not invade the borders of others property? If that is the case, then the entire concept of servitude is meaningless. So, do you oppose servitudes as a violation of property rights? Certainly violating the terms of use imposed by the servitude does not trespass on another’s property, or does it?

It seems to me that the servitude creates a right by others to use coercion to enforce the terms of use you previously accepted. You acquired it under those terms. What is legitimate in one case seems to be legitimate in the other.

If you are saying that no one, to be a true “Libertarian” should accept the burden of servitudes, then you can stop buying and reading books. You do have freedom to do that right now. Isn’t that a voluntary act?

Ideas are free is just a shorthand way of explaining that ideas are free goods, not scarce resources. And *therefore* they are not suitable objects of proeprty rights, and that to attempt to protect ideas as property rights really is a disguised way of re-assigning existing property rights.

Yes, ideas are free goods, and shorthand is a way of leaving details out. The fact that oxygen is used to makes a sword and that ideas are used to write a book does not change the fact that a property rights in the sword is not ruled by the rule of oxygen, and a work is not ruled by the rule of ideas, letters, or the free oxygen you breath while writing. It is the means that is material, not the composition of inputs.

What is the detail behind the purpose of making a distinction between “ideas” and “works”? It is to distinguish one from the other in order to define the subject matter of copyrights, which according to you, “thankfully does not cover all ideas”. Which ones does it not cover and why? Because “sun” is not equivalent to “The Sun Also Rises”. Anyone can easily tell the difference. Yet you insist there is no meaningful distinction?

If by “work” you mean a pattern of information or idea, I dont agree–it was never property. Just b/c you are able to keep it secret does not mean it’s property. It means that your property rights in your body are useful to you since they allow you to keep secrets. further, all ideas are to some extent derivative, so nothing is 100% original (by the same token, nothing is 100% derivative–every new idea is somewhat original, and somewhat derivative).

No, as you know a “work” is not merely a pattern. Your use of “pattern” is just a way of describing an objective method for distinguishing between two patterns. In your words, it is merely a “technical issue”. A pattern can be random, meaningless and worthless. Works, the author hopes and intends, are none of these. A “work” implies something “Lockean” has occurred. No wonder you avoid that like the plague. One might otherwise conclude that a work is a first use of unclaimed and un-owned patterns, and thus is an act of homesteading.

Not at all; as I have explained dozens of times now, some contracts are unilateral and the event or act that triggers a title transfer is not itself owned–e.g. I will give you $10 if it rains tomorrow is unilateral and conditional, and does not imply “raining” is owned; “I will give you $10 IF you tell me your secret” does not mean the secret is owned: it only means the one-way transfer of title (to the $10) is triggered by a specified event (telling the secret).

And I have responded a dozen times that I am not claiming I own the “rain” in your example. But I am saying that unless you own the $10, you cannot transfer it to me. Unless I own the secret why would you be willing to pay me for it? I am simply stating that to contract for something you will exchange, you must have the right to transfer it.

So, if I can contract with you about my “secret”, you must not be able to get it from anyone else. Because I have exclusive possession and use of it, I can transfer it to you. If I did not own my work, how could I enter a contract to transfer it to you under any terms?

This sounds like the bizarre reasoning of Schulman who thinks “thingness” implies ownability.

Schulman can speak for himself. I am merely saying that “things” are the subject of property rights, and as a human device, if the “thing” can be defined, then it can become property. There is no ordained limitation on what can be the subject of property rights. Likewise, we may specifically exclude some “thing” as property, as we have done with slavery.

There is nothing wrong with a law that establishes “limitations on ownership” of a thing that is transferred to another, (i.e. a servitude).

Depends on the content. If the servitude is a negative one that says “you may not use your body to ingest narcotics unless I give you permission,” there is something wrong with it. Likewise with IP, which says “you may not use your computer to calculate an answer to the traveling salesman problem in X way without my permission”.

That is quite correct. It depends on what you think is right and wrong. Since all rights must be defended, and ethical, and economic principles are employed in that defense, then it really depends, ultimately on how you construct your defense of any asserted right. My defense of IP depends on the ethical and economic principles of this statement:

“A producer should own what he produces with his own means.”

Ideas are never property.

As you know, I completely agree. They could be, given that property is a human device, but it is bad policy to secure ideas with property rights. That is why they are specifically excluded from the subject matter of copyright law.

Have we learned anything?

I’m not assuming you don’t understand, I’m assuming that our understanding is different, and so I’m laying out as best I can my understanding. If you did not find anything objectionable in what I wrote (other than that I addressed it to you), then my assumption was wrong. And that’s fine.

I understand that you are “applying the logic of easements to another area to see if there is consistency” – but I believe you are applying this logic incorrectly. What I was trying to convey (rereading my post I see why it was unclear) is this:

An easement is just a shorthand for a complex set of contracts which stipulate conditions which future sale contracts must contain for the sale itself not to be a breach of contract. The important feature in this is that if you have a potential seller and a potential buyer, the seller is already bound by the contract of the easement, and the buyer must agree to the easement (and thus also the condition that whoever he resells the land to must agree to the same easement) in order for the sale to be valid.
Thus, your original objection (or at least, the one I was responding to):
“having to obey agreements you didn’t explcitly make” is not exactly correct, I don’t think. If there is no fraud, then easements only affect those people who own the property, and those people who choose to agree to the easement in order to buy the property. The “chain” of contracts is never broken, and they only impact those who agree to the terms of the chain.

This is not analogous to IP, as there are some situations in IP in which someone who made no agreement whatsoever with anyone can be in the position of “having to obey agreements you didn’t explicitly make”. So IP can make you into a criminal even if you did not use threats, agression or fraud against anybody – that’s the part of it I really object to, I suppose.

I apologise if my tone was condescending – I respect your opinion, intelligence, and commitment to finding the truth. I like to believe I am heading towards the same destination myself, even if my current position is not the same as yours.

Also, you didn’t respond to anything else I said because you know there’s nothing worthwhile to say against it.

yeah, that’s “all”. hahahah Just like, it’s okay to have sex with a girl if it’s voluntary you know, but if it’s not, it’s rape. The difference between them is that one is voluntary, the other is not–that’s all!

If ownership of property means exclusive use, and use is a bundle of rights that can be alienated, then transfer of property can be burdened by an operation of law which does not depend on contract and/or privity. For example, I can sell you my land, yet prevent you from total freedom of use of that property, correct? And that lasts forever?

So I can, by operation of law and under threat of coercion, interfere with your property rights by the terms of transfer. As the property passes down from party to party in subsequent transfers, the servitude runs with the land, (if I have notice it exists)?

As a legal concept, how is this different than the limitations on ownership established by copyright law for the benefit of the general public (consumer) or the benefit of a particular person (author)? In terms of its operation on property rights (ownership), aren’t they rather analogous? I sell you a book under terms which limit your use of that property by operation of law, and it applies to everyone without a need for a contract.

How does this square with the assertion that if I sell you a book, I am only selling you the paper and ink, and it is not possible to sell it to you with the equivalent of a “servitude” that restricts your use of it?

And Kinsella responded:

you acn have an agreement with your cusomter that makes him the licensee or borrower of your book, if you want, but what moron would do accept this? Why pay $10 to “license” a book when you don’t get full ownership, and when you subjecty ourself ot millions of dollars of liability if you “use” the information you “learn” from the book? such models would fail. Obivoulsy.

I’m not at all sure why whether or not a particular business model will fail or not is relevant to a discussion of the foundation of property rights, but anyway. This doesn’t answer the objection at all. I didn’t suggest a registry where people register information that you could extract from their work and then have this registry go around aggressing people who “use” this information. I didn’t suggest that because it is idiotic. But if you want to argue with strawmen of your own creation then that is up to you.

I said a registry could evolve on the free market in which people can register their engineering drawings (ones only ever released with terms of sale which stipulated that the buyer could not create copies) for copyright. Just like a new owner of the sevrvient estate who is unaware of the easement must have been defrauded by the original owner, someone sold a copy if the engineering drawing without being given knowledge of its copyrighted status must also have received it via a breach of contract on the part of a legal owner somewhere down the line.

I ask again: what is the difference? Why can a servitude “run with the land” but not “run with the book”? And just like the new owner of the servient estate may be forced to allow the easement to continue despite the fraud, so could the new owner of this drawing have to give it back and destroy any copies he made (insofar as this is possible, if it’s already been made into a poster in Times Square then so be it). The buyer of the servient estate can be expected to do due diligence in the land registry – so can the buyer of an engineering drawing be expected to do due diligence on its origin by visiting the copyright registry.

More difficult and fuzzy in the latter case no doubt – is this your objection to it?

Or are you going to say it’s because you make a copy of the book using your own paper and ink and so this new entity is not the one about which an agreement was made and so restricting your use of your own paper and ink makes it totalitarian?

Or is it this?

A servitude is a limited right to use a scarce resource. E.g., you are the naked owner of a tract of land, and I have a servitude to drive over a portion of it, say to get to my own driveway. A patent or copyright gives someone the right to veto how another person uses their own scarce resources. So it is like a “negative” servitude except that it is not voluntarily negotiated.

So does the whole thing come down to this – “except that it is not voluntarily negotiated”?

Easements by prescription, also called prescriptive easements, are implied easements granted after the dominant estate has used the property in a hostile, continuous and open manner for a statutorily prescribed number of years.

“The period of continuous use for a prescriptive easement to become binding is generally between 5 and 30 years depending upon local laws”

“Government or railroad owned property is generally immune from prescriptive easement in most cases, but some other types of government owned property may be subject to prescription in certain instances. In New York, such government property is subject to a longer statute of limitations of action, 20 years instead of 10 years for private property.

These easements are often such that a period of nonuse is sufficient to extinguish the easement. How many times have I read hysterical anti-IPers screaming about the arbitrariness of the length of copyrights and how this requirement for a parameter makes them impossible?

Am I also justified in asking why ten years and not nine or eleven or a million is sufficient with easements? Easements seem to be doing just fine with this – is it any wonder I’m not persuaded by these “arguments”?

We have established that an “original work” is the property of the author prior to disclosure.

And we also have established that the original work is the property of the author after disclosure. Same with the copied work: it is owned by the copier prior to the disclosure and after the disclosure.

We have established that the ability to contract for a title transfer of a thing presumes that it is owned by the transferring party. Some “thing” that is owned is the property of the owner.

We also have established that in order for a “thing” to appear as a noun in a contract it is not necessary that that “thing” is owned by either of the parties, or even to exist at all.

There is nothing wrong with a law that establishes “limitations on ownership” of a thing that is transferred to another, (i.e. a servitude).

As I explained about two months ago, there does not have to be any legal connection between a noun that you put into a contract and property rights. There does not even have to be a causal relationship. The only connection required is rhetorical: both parties need to understand what the noun means.

I think the only place you can land is to assert that what starts out as property can be transformed to non-property at the point of disclosure, and as such, can no longer be the subject matter of a property law.

As I said before and above, you are committing a fallacy by performing a rhetorical trick. The disclosure has no effect on property rights. And since it was already explained to you multiple times, you’re stupid or a fraud or both. Based on the reactions of other people, I’m not the only one coming to this conclusion.

The endless stream of crap you produce is nauseating. Stop your meaningless demagoguery and confront the huge pile of errors you have accumulated, you coward. Oh sorry, I forgot, you’re not here to argue, but to confuse and repeat erroneous statements over and over.

“you acn have an agreement with your cusomter that makes him the licensee or borrower of your book, if you want, but what moron would do accept this? Why pay $10 to “license” a book when you don’t get full ownership, and when you subjecty ourself ot millions of dollars of liability if you “use” the information you “learn” from the book? such models would fail. Obivoulsy.”

Obviously. We’ve been over this before.

Glad you agree. so you admit it’s disingenuous to say that IP can be created by contract.

This is why you say there are only two options under your property rules; 1) keep it to yourself (secret or contract) or 2) deposit it into the public domain (recognize no property rights if disclosed)

I don’t say this exactly, I mean who knows what intermediate things you can work out by contract etc. Up to the entrepreneur.

Since this destroys, for the most part, anything like an economic interest in writing books, we will, according to AET, have fewer of them. I get that.

I don’t agree there woudl be fewer books. We know that copyright prevents the publication of some works–sequels, derivative works. And it also imposes billions of dollars of cost on the economy, i.e., impoverishing us, and in its absenc,e with more money, there would be some people on the margins who are not writing now b/c they have to work ar egular job, etc., but who could afford to with the additional resources available absent copyright’s “tax.” Further, more money in the hands of consumers means more money to buy books. So you cannot assume there would be fewer works absent copyright. Nina Paley had a devil of a time making Sita Sings the Blues b/c of copyright; a lesser artist would have given up. But absent copyright lots of projects that are now dissuaded, or too costly, would be viable.

I am asking you if the legal concept of servitude is analogous to the operation of IP laws, in your opinion. It seems that way to me.

A servitude is a limited right to use a scarce resource. E.g., you are the naked owner of a tract of land, and I have a servitude to drive over a portion of it, say to get to my own driveway.

A patent or copyright gives someone the right to veto how another person uses their own scarce resources. So it is like a “negative” servitude except that it is not voluntarily negotiated.

“Negative servitude. A PREDIAL SERVITUDE “impos[ing] on the owner of the SERVIENT ESTATE the duty to abstain from doing something on his estate.” La. C.C. art. 706.”

If so, then we can dispense with all the posturing about how IP works against property theory, and simply reduce the debate to the fundamental issue.

I do. the fundamental issue, as I wrote even back in my 2000 article on LRC, http://www.lewrockwell.com/kinsella/kinsella2.1.1.html , IP sets up a second homesteading rule that undermines the Lockean one of first use. All IP is a disguised way of stealing and reassigning ownership to scarce resources. If you have a copyright, it means you own some of my money (if I do X) or you own my printing press, since you can tell me what not to do with it (unless I pay you extortion-ransom).

This is the problem with all unlibertarian, statist law. Drug laws say that the state owns your body–they can tell you want to do wit hit. Tax laws transfer ownership of your money to the state. When a criminal steals from you or kills you he is assuming ownership of your stuff of body. This is not a good thing, it’s a bad thing. That is THE problem with IP. In an IP free world people are free to use their own property, so long as they do not invade the borders of others’ owned resources/bodies. they do not need permissio. They can use whatever ideas or knowledge they have to guide their actions, or to decide what ends to pursue or means to use to achieve their ends. In an IP free world the first guy to build a log cabin can’t tell me not to build one, since when I build one, I am not trespassing on his property–his use of his own log cabin is undisturbed. As I am not committing trespass he has no right to stop me, and if he does, he is the aggressor, not me. IP legalizes what would otherwise be a a crime.

We have established that the “ideas are free” line or reasoning is not adequate to dismiss IP. There is a distinction that is meaningful between “ideas” and “original works”.

Ideas are free is just a shorthand way of explaining that ideas are free goods, not scarce resources. And *therefore* they are not suitable objects of proeprty rights, and that to attempt to protect ideas as property rights really is a disguised way of re-assigning existing property rights.

We have established that an “original work” is the property of the author prior to disclosure.

If by “work” you mean a pattern of information or idea, I dont agree–it was never property. Just b/c you are able to keep it secret does not mean it’s property. It means that your property rights in your body are useful to you since they allow you to keep secrets. further, all ideas are to some extent derivative, so nothing is 100% original (by the same token, nothing is 100% derivative–every new idea is somewhat original, and somewhat derivative).

We have established that the ability to contract for a title transfer of a thing presumes that it is owned by the transferring party.

Not at all; as I have explained dozens of times now, some contracts are unilateral and the event or act that triggers a title transfer is not itself owned–e.g. I will give you $10 if it rains tomorrow is unilateral and conditional, and does not imply “raining” is owned; “I will give you $10 IF you tell me your secret” does not mean the secret is owned: it only means the one-way transfer of title (to the $10) is triggered by a specified event (telling the secret).

” Some “thing” that is owned is the property of the owner.”

This sounds like the bizarre reasoning of Schulman who thinks “thingness” implies ownability.

There is nothing wrong with a law that establishes “limitations on ownership” of a thing that is transferred to another, (i.e. a servitude).

Depends on the content. If the servitude is a negative one that says “you may not use your body to ingest narcotics unless I give you permission,” there is something wrong with it. Likewise with IP, which says “you may not use your computer to calculate an answer to the traveling salesman problem in X way without my permission”.

I think the only place you can land is to assert that what starts out as property can be transformed to non-property at the point of disclosure, and as such, can no longer be the subject matter of a property law.

Ideas are never property.

Well, I have to hand it to you; appealing to yourself as authority! Among other things, you are certainly prolific…

you acn have an agreement with your cusomter that makes him the licensee or borrower of your book, if you want, but what moron would do accept this? Why pay $10 to “license” a book when you don’t get full ownership, and when you subjecty ourself ot millions of dollars of liability if you “use” the information you “learn” from the book? such models would fail. Obivoulsy.

Obviously. We’ve been over this before.

This is why you say there are only two options under your property rules; 1) keep it to yourself (secret or contract) or 2) deposit it into the public domain (recognize no property rights if disclosed) Since this destroys, for the most part, anything like an economic interest in writing books, we will, according to AET, have fewer of them. I get that.

I am asking you if the legal concept of servitude is analogous to the operation of IP laws, in your opinion. It seems that way to me.

If so, then we can dispense with all the posturing about how IP works against property theory, and simply reduce the debate to the fundamental issue.

In no other area of market operations does property operate the way you propose for IP (subject matter). That is, there is nothing wrong with the operation of IP law that would not also be wrong with the operation of the rules of servitude in real estate law. Do you disagree?

• We have established that the “ideas are free” line or reasoning is not adequate to dismiss IP. There is a distinction that is meaningful between “ideas” and “original works”.

• We have established that an “original work” is the property of the author prior to disclosure.

• We have established that the ability to contract for a title transfer of a thing presumes that it is owned by the transferring party. Some “thing” that is owned is the property of the owner.

• There is nothing wrong with a law that establishes “limitations on ownership” of a thing that is transferred to another, (i.e. a servitude).

• I think the only place you can land is to assert that what starts out as property can be transformed to non-property at the point of disclosure, and as such, can no longer be the subject matter of a property law.

Why? Because “ideas are free”? Anyone else getting dizzy?

you acn have an agreement with your cusomter that makes him the licensee or borrower of your book, if you want, but what moron would do accept this? Why pay $10 to “license” a book when you don’t get full ownership, and when you subjecty ourself ot millions of dollars of liability if you “use” the information you “learn” from the book? such models would fail. Obivoulsy.

Stephan, next thing you know you’ll be encouraging ME to quote from Blacks or something without calling me “crankish”. We are making major progress!

Let’s go with this part for a minute:

Legal servitude. “[L]imitations on OWNERSHIP established by law for the benefit of the general public or for the benefit of particular persons,”

In other words, in property law, a servitude is a device employed to establish a limitation on ownership (rights) of the subject property. It is established by operation of law, and is therefore enforceable against everyone, despite lack of privity to the transaction which establishes it, correct?

If ownership of property means exclusive use, and use is a bundle of rights that can be alienated, then transfer of property can be burdened by an operation of law which does not depend on contract and/or privity. For example, I can sell you my land, yet prevent you from total freedom of use of that property, correct? And that lasts forever?

So I can, by operation of law and under threat of coercion, interfere with your property rights by the terms of transfer. As the property passes down from party to party in subsequent transfers, the servitude runs with the land, (if I have notice it exists)?

As a legal concept, how is this different than the limitations on ownership established by copyright law for the benefit of the general public (consumer) or the benefit of a particular person (author)? In terms of its operation on property rights (ownership), aren’t they rather analogous? I sell you a book under terms which limit your use of that property by operation of law, and it applies to everyone without a need for a contract.

How does this square with the assertion that if I sell you a book, I am only selling you the paper and ink, and it is not possible to sell it to you with the equivalent of a “servitude” that restricts your use of it?

I even started off pro-IP and did not turn away from that until I was 17 or 18. No, that is a testament to your inability to say anything that is good cause to budge.

There is a quote attributed to Mark Twain that goes like this: “When I was 17 and left home, my folks were stupid and uneducated. When I returned at 20, I was amazed at how much they had learned.”

Moral: You must be very wise now that you are 20.

Good one!

Thanks! “Ask and ye shall receive”, I suppose. A predial servitude is an interesting concept. It seems to be a very clever trick to solve a complicated problem.

Kid Salami,
Do you buy that a predial servitude can be a contract that establishes a property right? It seems a useful legal model to allow property owners to create easements which can remain enforceable between any two concurrent owners of the dominant and servient estates. Rather than have each new owner of each estate make a reaffirmation of the easement a condition of the purchase contract, predial servitudes instead establish a relationship between two pieces of property, which future buyers of the two properties will be bound by unless the two owners concurrently agree to dissolve the easement, or the dominant estate chooses to abandon the easement.

To me, then, this is just a short-hand, for a complicated but nevertheless common situation in co-operative societies. I think, then, that this “invisible tag” is essentially valid. It establishes a contractual relationship between two properties which could equally (but not as simply) be established between every pair of property owners.

I think then, that predial servitudes are a way for the servient estate (the land-owner) to guarantee to the dominant estate (the easement-holder), that he will not sell his land to anyone who does not agree, as a condition of the contract of sale, to contractually commit to uphold the same easement agreement.

With this in mind, I think Stephan was correct above in saying that easements can be considered valid property rights in scarce things.

I have no problem with easements in and of themselves, I’m not sure why anyone thinks I do. I am applying the logic in one area to another to see whether there is consistency.

Well, I for one don’t think you do. But it is a slippery subject when in the hands of the anti-IP, Ancap crowd. I’ve been working to unravel the fallacies, and think I am getting close to a comprehensive picture. Your insightful queries continue to shed light on the subtleties of the arguments regards whether IP can “legitimately” function as property, and why not, according to the prevalent anti-IP logic.

An “easement” is not, itself, property.

To answer what an easement is, we have to understand what property is and is not.

First, property is a “thing” to which the owner has “title.” Legally, it can be tangible or intangible, but the party line denies recognition of property in anything intangible.

This is the first fallacy. An easement is an intangible right to modify the bundled rights of one property identity (blackacre) and to transfer it to the second property identity (whiteacre). Whiteacre becomes the dominant property and blackacre become the servient property. It becomes a “thing” when the rights are defined (width, purposes, etc), and when the transfer of title to it is memorialized in a way which defends its operation against those who would violate it. Before it is made specific to particular land and parties, “easement” is just a concept in the domain of property law.

Second, property is freely alienable. (Sweatervest apparently doesn’t get this concept.)
Being a human device, property is owned by humans. As owners, they have exclusive rights to use and possess it. These rights can be transferred to other humans. Humans have developed devices to facilitate the alienability of property rights. We use the concept of “title” to memorialize the ownership of a thing. There is no necessity to distinguish between tangible and intangible things, only that we acknowledge that title to a thing is not the same as the thing itself.

If one has title to a thing, it can be transferred to another; it can be freely alienated from one owner and transferred to another. This is the nature of property rights. Property law seeks to protect the alienability of property by preventing contracts which forbid assignment, (a form of transfer) for example. Unless you are a good lawyer and know how to write a contract that actually prevents assignments from taking place, the law honors assignments, even if the contract says they can’t happen. This is an example of how property laws influence the operation of contracts to protect the fundamental alienability of property.

This is an economic issue encoded in law, and has nothing to do with ethics. Chattel slavery operates in precisely this same way, which is why it is proper to describe slaves as chattel; they can be sold, and title can be transferred from one person to another.

This is a second fallacy. One of Surda’s favorite rants is about how all things are tangible, and all things tangible are already owned, so assigning any property rights to an intangible thing is a contradiction. In this way, he can support the idea that it is the paper, not the “work” that matters, and so rights to intangible “property” transfers with the tangible medium. Under this concept, it is the title to an easement that rules, not the easement itself that rules property rights. Likewise, it is only the paper and ink that one owns that matters in determining who has better title to a literary work.

Of course this is nonsense, as you already pointed out. If the paper upon which the title to an easement is fixed, is later burned, does the easement still exist? Of course. If the paper upon which a literary work is fixed is destroyed, does the work still exist? Naturally. Property is a device for assigning ownership to a thing. Proof of ownership may take the form of a title document recorded in the county office. That document is not the thing itself. It is proof of title to a thing.

Property is a conceptual device for assigning ownership to a thing, and title is a concept that facilitates the assertion, defense and alienability of property rights. Depending on the nature of the thing, the rules for recording and transferring title may evolve specifically to solve the problems associated with that particular thing. This is why we have something called property law. It is the accumulation of various doctrines that establish the rules of operation for property acquisition, use, and transfer. In its fundamental principles, it has nothing to do with one particular thing or another.

In its details, it is very specific. Land property involves certain rules, and is integrated with other rules of contract, wills, torts, etc. Rights are defined, and infringement of those rights become causes of action, which follow the rules of civil or criminal law. IP law is merely a specialized branch of property law. It is a wondrous and beautiful artifact of civilization, though like humans themselves, imperfect. But I digress…

Next, we come to scarcity. This is a somewhat metaphysical concept that is played like a violin by the party faithful. One branch follows the “rivalrous” line of logic.

If two people cannot possess a thing simultaneously, it is rivalrous, and therefore scarce, and therefore requires a system of ownership to avoid conflict over its exclusive use, i.e. ownership rights. This is contrasted with non-scarce things, for which abundance removes the possibility of rivalry. Air and ideas are non-scarce.

Are easements scarce or non-scarce? One could argue that all easements are applied to a particular piece of property, and since the property is scarce, so is the easement. However, this does not square with the rivalrous use argument.

If we have two parcels of land, W and B, and W includes an easement over B, then the owners of the parcels have merely transferred rights to their own scarce, rivalrous goods. All others, who are not a party to this agreement are excluded, except by consent of the owner of the easement. The easement is scarce, and rivalry for its use is determined by the owner of the scarce easement; so far so good.

But let’s say in order to buy a particular parcel of land, I agreed to negotiate with the owner for a public easement across the land to the ocean beach. I agree, record the easement, build the house and die. My land is sold to a third party, who moves in and sits on his new porch and watches the streams of people walk across his land to the beach. Is the easement still scarce? Is there rivalry for its use? Obviously, there is no rivalry over the use of the easement; all comers are welcome to avail themselves of its use.

Imagine that the new owner objects, and refuses to allow transgress. Is the use of coercion justified? Obviously yes, but why? How can you use coercion to defend a non-scarce right to use an intangible thing? That would be aggression, wouldn’t it?

The simple answer is because the land is property, and rights in property are bundled and alienable. So the owner unbundles the limited right to transgress over a particular portion of it, while retaining other rights. He follows accepted procedures for modifying and recording his property rights such that future disputes can be resolve peacefully by following the rules of property rights and enforcement.

This is true of all property, and is not dependent upon whether the “thing” is tangible or intangible. In fact, an easement is an intangible “thing” fixed upon a particular piece of tangible property. The property itself is scarce within the meaning of the homesteading principle, but the easement itself is neither tangible nor scarce.

In the same way, a literary work is comprised of intangible things fixed upon a particular piece of tangible property. The paper it is fixed upon is not the “thing” that is the subject of property rules. Everything about the operation of Intellectual Property rights is consistent with the example above. It was brilliant of you to use this easement example to bring these distinctions to light.

Finally we come to the “ideas are free” line of reasoning. I have addressed this is such detail elsewhere, I’ll simply say here that I had an exchange with Kinsella having to do with the property rights of a sword produced by means owned by a sword maker.

I argued that the forge that heated the unformed metal depended upon oxygen in the air, which is free. Therefore, to follow his argument, I would have to conclude that the sword, once disclosed to the market by its sale, would have to be free, since oxygen is free and cannot be owned by anyone. Since I cannot own it, I cannot sell it, and if I cannot sell it, why bother to make it, and so if you want a sword, you better make one yourself.

Because ideas are one of the components of a literary work does not mean that we can’t tell the difference between an idea and the work. The fact that the work is intangible before it is fixed is no more relevant than the fact that the letters used to write the words cannot be owned either. The fact that the sword maker didn’t own the oxygen he used to make the sword does not mean he has no property interest in the product he makes with what are otherwise his own private means.

Kinsella will even agree that before it is disclosed to anyone, there is no dispute about the fact that an author owns his original manuscript. What he disputes is that, except for the paper and ink, nothing else about that manuscript can operate as property. Why? Because “ideas are free”. Once you perceive the circularity of the argument, it seems obvious.

Is someone now going to argue that land is different to other items of property?

No, this cannot be done, so it is essential to attack IP on the grounds that it is not property at all. This is why all the enthusiasm around the scarcity principle. It defines away IP on those grounds, yet ignores the inconsistency with other forms of intangible property interests.

If so, I’m with you – David Friedman suggests this has evolved with land because of land registries and the like, and how with land you can do a systematic investigation into the adjoining land any easements the owner might hold and therefore it is reasonable to hold the buyer responsible because he knows easements exist and simply didn’t do his due diligence.

But what Friedman is saying here is still correct. Rules evolve to deal with the particular thing. Land has its own attributes. Fundamental along this line is the impossibility of “copying” land. In the sword analogy, it would be possible to “copy” the sword from the original, but it is costly in terms of physical means, time and know-how. This is the specialization feature of the division of labor economic society, where specialization makes it more attractive to buy rather than to make everything you want to own.

When the sword maker sells his sword, he does not also sell his means. He keeps his forge, know-how, and supply chains. If you want to recreate those means, you have to invest.

When an author sells a book, he is also selling his means. Copies are easy and cheap to produce, provided you have an original copy to work from. This is the feature of IP that requires the creation of special property rules concerning intangible works.

But these kind of arguments are labeled “utilitarian” and don’t fly around here. Specifically, Kinsella and Peter said a week or two back when discussing homesteading that there is no special rules you can apply to land and nothing else. They said this very clearly.

Another thing that Friedman reminded me of is that economics itself is a utilitarian argument.

This has really been my point all along, why I was attracted to Mises.org originally, and the final issue (I think) in the anti-IP arsenal. I have been trying to engage Kinsella in a discussion of externalities, and have been quoting the “production for external economies” passage from Mises to try to address this issue. So far, no takers.

I have argued for the principle of IP, not for the acceptance of every detail and nuance of existing IP laws and application. The fundamental principle, which has both ethical and utilitarian (economic) justifications, is “You should own what you make with your own private means”.

Everyone with a free market belief understands the validity of that principle. But oddly, in order to make the anti-IP argument work, you have to draw an exception to this principle around IP. Kinsella also said (to paraphrase) that an author with an undisclosed, original manuscript has two choices: 1) keep it secret (which includes 1 to 1 contracts) by not disclosing it or 2) sell it once and you’re done, (once disclosed, it is an un-owned, non-scarce, non-homsteadable, resource available to all. No whining about that allowed!).

Translation; authors are not entitled to own what they produce with their own means. Whether they choose option 1 or 2, they are not permitted to participate in the market along with other producers. Why? Because “ideas are free”. Ironically, as I said rhetorically before, this puts anti-IP advocates in the curious position of advocating slavery, because slaves do not benefit from their own production. Authors who cannot produce for their own markets are slaves to an external economy. This is the net result of Kinsella’s false dichotomy, and why some accuse him of “IP Socialism”.

So my question then is: why can we have these invisible tags for land and not for engineering drawings, especially when there is “no relevant distinction” between land and engineering drawings (when considering ownership and usage issues)?

The fact is they are not invisible. Humans are very capable of making the discrimination between public and private property with ease. Fences are nice but they are hardly necessary, otherwise we could not tell the difference between a public park and someone’s front yard. If you know it is not your property, it is a good bet it is someone else’s. A well worn path to the beach may be all the indication you need that an easement exists or you are on public property. Notices can help, too.

How hard is it to grasp that if you didn’t write a particular book, it must have been written by someone else? Since books don’t write themselves, and they don’t get washed up on the beach from undersea volcanoes, they must have been written by someone who invested time and money to make them available to you, and are not “un-owned resources” subject to the rule of capture (or homesteading)?

I know I am singing to the choir, but you provided a great opportunity to lay it all out, as I see it.

Please do not disparage intellectual lightweights by comparing us to wildberry

If I really believed I was so arrogant that I had direct access to the truth, I wouldn’t dump huge volumes of my thinking onto public internet forums to be picked apart by all sorts of strangers over and over again. I would not feel any need to convince anyone of what I believe, or even share it, because I would be already convinced that I know everything there is to be known and would keep silent on everything, only thinking to myself how stupid everyone else is.

Rather, I come onto public places and lay out my theories completely naked in front of everyone to be criticized, attacked, parodied and whatever else people may do to my theories because I actually *am* interested in what others have to say to me because I actually *do* recognize my fallibility and eagerly await someone to set me on a greater path.

Wildberry, that you fail miserably to get me to budge even slightly from my position is not a testament to my inability to budge. Hoppe changed my mind dramatically about many things, as did Rothbard and Mises. I even started off pro-IP and did not turn away from that until I was 17 or 18. No, that is a testament to your inability to say anything that is good cause to budge.