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Source link: http://archive.mises.org/17345/stallman-an-internet-connectivity-tax-to-compensate-artists-and-authors/

Stallman: An Internet-Connectivity Tax to Compensate Artists and Authors

June 19, 2011 by

As reported by PC Pro, in EBooks are “attacking our freedom”, free software advocate Richard Stallman wants ebooks boycotted “until they ‘respect our freedom.’” He’s concerned about DRM in Kindle books, for example. Also: “‘Amazon requires users to identify themselves to get an eBook,’ Stallman claims, pointing out that printed book buyers can walk into a bookstore and make a cash purchase anonymously.”

I agree these are problems, but some are caused by IP (DRM and proprietary formats), while others are just part of the nature of this new way of delivering content: it has some advantages, and some disadvantages. In an IP free world, most of these problems/concerns would disappear or abate radically. So it is IP we ought to be fighting, not the business practices that will predictably arise in response to IP. Moreover, I think the concern about inability to buy books anonymously largely arises because we have an intrusive, snooping, criminal, dangerous state–a nosy nanny that people want to hide their activities from. But in a free society there this would not be the case, so there would probably not be as much need for anonymity in book purchases, since there could be no legal penalty imposed for reading the “wrong” kind of books.

In any case, Stallman proposes a bizarre use of tax funds to help solve this problem: “Stallman claims that eBook retailers can still support authors and retain buyers’ freedoms by distributing tax funds to authors based on their popularity, or by ‘designing players so users can send authors anonymous voluntary payments’.” It’s not clear here exactly what sort of “tax” he means–whether a real tax by the state, or some “tax” (i.e., fee) collected contractually by private retailers. But elsewhere, in discussing an “Internet Sharing License,” he seems to endorse the idea of the state making Internet Service Providers collect a “levy” (read: tax) from all Internet users, to distribute to authors and artists, with “each artist’s share” being determined “in direct proportion to her work’s popularity.”

In Freedom—or Copyright?, he is a bit more explicit:

Another good way to support music and the arts is with tax funds—perhaps a tax on blank media or on Internet connectivity. The state should distribute the tax money entirely to the artists, not waste it on corporate executives. But the state should not distribute it in linear proportion to popularity, because that would give most of it to a few superstars, leaving little to support all the other artists. I therefore recommend using a cube-root function or something similar. With linear proportion, superstar A with 1,000 times the popularity of a successful artist B will get 1,000 times as much money as B. With the cube root, A will get 10 times as much as B. Thus, each superstar gets a larger share than a less popular artist, but most of the funds go to the artists who really need this support. This system will use our tax money efficiently to support the arts.

Now it could be true that such a system would be better than copyright–copyright imposes a tax, too, but it is disguised and hidden. Maybe it would be better if it were out in the open and clearly seen as a tax and redistribution scheme. But, contra Stallman, it would still be bad. It seems bizarre to fear the lack of anonymity in a private transaction, while wanting the state to have anything to do with deciding which artists and authors get subsidized by taxpayers. (I’ve criticized Stallman and other leftist opponents of IP in Eben Moglen and Leftist Opposition to Intellectual Property and An Open Letter to Leftist Opponents of Intellectual Property: On IP and the Support of the State.)
Incidentally, this scheme seems to be the copyright analog of a similar proposal in the field of invention/patents–replacing or supplementing the patent system by using tax-funded “prizes” paid to useful technical innovations (What’s Worse: $80 Billion or $30 Million?; Libertarian Favors $80 Billion Annual Tax-Funded “Medical Innovation Prize Fund”; $30 Billion Taxfunded Innovation Contracts: The “Progressive-Libertarian” Solution).

{ 311 comments }

jon June 19, 2011 at 8:26 am

i’m extremely tired of hearing stallman’s opinions. like to the point that i would gladly replace the GNU in GNU/Linux with a CCBYSA2.0-licensed system of equivalent capability. maybe we could call it Blowhard-free/Linux. that aside, you can trust that a socialist means the state when he uses the word tax.

Shay June 19, 2011 at 10:37 am

And I’m extremely tired of reading things like yours every time Stallman is mentioned. This idea sounds fishy, for sure (just like the fees that already exist in Canada, whose proceeds go to the MAFIAA), but it’s not useful to put down Stallman as a person, and doesn’t tell us what’s wrong with his ideas.

Anyway, his centerpiece, the GNU General Public License, depends critically on copyright existing. It basically only licenses code to anyone for distribution as long as the code always goes along with the program built with it. If copyright or the state cease to exist some day, the GPL can’t be enforced anymore, and we’ll be left with basically the modified BSD license, which is where releasing the code makes it usable by anyone for any purpose, including in closed-source products. I generally figured that the GPL was just a compromise that only needed to exist as long as copyright did, in order to balance the effects of it on source code, but this kind of tax idea makes me wonder whether Stallman really has liberty (and thus respect of property) as a core value.

nate-m June 19, 2011 at 12:44 pm

Stallman has a myopic view of the world. He has one agenda and one agenda only:
Software Freedom.

That’s it. That’s his goal and that’s what he cares about.

He hates DRM not because it’s restricting the freedoms of users or anything like that, but because DRM depends on closed source software to function.

There is no mathematical way for a person to be able to control information once it’s been received and consumed by the end user. Cryptography doesn’t work that way. You could break it down to physics if you want… this is just not how the universe functions. Cryptography can provide very important functions related to authentication, integrity, and confidentiality of information, but it can not provide control of information once it’s received by the other party.

So DRM depends on closed source software hiding how it functions to be able to work. It needs to simply hide how the data is decryption and is displayed for the end user. If the user knows how the software works then it’s a simple thing to be able to ‘hack’ the software and extract DRM free copies at 100% quality.

It is this DRM’s requirement for closed source software that Stallman is objecting to. The fact that it encourages users to purchase or use closed source software is the ‘loss of freedom’ that he is decrying.

This helps to illustrates the fundamental difference between Libertarian viewpoints versus Stallman-style Copyleft ideologs.

In the Libertarian viewpoint would have no problem with closed source software. If you provide software binaries then you are under no obligation to provide the source code for it. If you provide streaming services over the internet then there is no problem if you want to use DRM. However there is also no problem with people copying your software as much as they please or putting efforts into cracking your DRM, unless they have voluntarily agreed to not do such things.

The Libertarian/Ancap dogma says that it’s the immoral to have copyright or the DMCA laws that make things like DRM commercially feasible. It’s not the DRM itself or closed source itself that is the problem… it’s the state government and institutionalized violence used to protect the software and media industry’s profits/markets that is the problem.

Stallman, on the other hand, has no inherent hatred for the state. He just hates closed source software. If copyrights protect closed source software then that’s a bad thing. But if copyrights protect open source software then that is a good thing.

If he could pass a law saying that closed source software was illegal then he would be happy to do so.

Shay June 19, 2011 at 1:13 pm

Have you got links to any good arguments against putting one’s software under GPL/LGPL, and preferring modified BSD? I’d love to be swept away by a strong argument that shows how GPL/LGPL is totally contradictory to someone who is against the state. Thanks.

nate-m June 19, 2011 at 2:26 pm

I don’t have any objections to GPL at all actually.

For the sake of non-nerds I will summerize the license here:

GPL —> You can use the software for any purpose, but IF (big if) you distribute the software (or derivative works) then you must provide a written offer for the source code, which can be used free of charge by anybody. (you can charge money for costs associated with distributing the source code, but not for profit)

BSD —> You can use the software for any purpose.

One of the important details of how copyright works is something called ‘derivative works’. If you combine copyrighted material into one thing. then it becomes a derivative work of both our copyrighted materials. The second important detail on how copyright works is that it always defaults to the most restrictions. So if you create a derivative work from my BSD-licensed software and you add restrictions then it will be illegal for me to use that software.

So what license you want to use depends on your purposes.

Do you just want to allow people to use your software for any purposes, even though you know they will use your own software combined with copyright as a competitive weapon against you in the market place? Then you use BSD.

Or do you want to allow people to use your software for any purpose, but want legal protections against the derivative works clause being used against you? Then you use GPL.

The most ‘libertarian-ish’ licenses are probably licenses like Mozilla License, Lesser GPL, Apache license, or Sun’s CDDL. These licenses are like a hybrid between BSD and GPL. They say that your software must be always open source, but say that any software you add and create derivative works may remain closed source.

It’s basically saying ‘You are to keep my software open source, but you can do whatever you want with yours’

But that approach has problems also. The most obvious one is that if you have a piece of big software with a hundred different licenses then the legal overhead becomes a serious issue for anybody wanting to use that software. (This is why GPL is so useful in operating systems… it ensures that it the number of restrictions and lawyerish stuff you have to do is minimized)

But there are other numerous subtle legal issues with this approach. Which is why Mozilla Firefox is licensed under three different licenses simultaneously: the Mozilla license, the LGPL, and then the GPL.

Then when you add patents licensing to the mix it becomes very hairy. Copyrights and patents are governed under completely different sets of laws with different effects and all sorts of hell.

Since software now is covered by both patent and copyright restrictions then it is a legal nightmare.

All in all it’s a shitty situation no matter how you look at it.

The one thing that open source software does prove for libertarians, however, is that copyrights are not necessary for software innovation and in fact that they are counter productive in many ways.

The most obvious example of this is that the Internet is built on open source software. There is NO WAY that the internet would function to day if it was not due to open source software. If companies choose to retain full copyright restrictions then there is no way in hell that the internet and world wide web could function as cheaply and as efficiently as it does now.

I don’t think ti could exist at all if people depended on copyright to foster software ‘innovation’.

TCP/IP —> BSD innovation. This is the basic language for the internet and the original implementation is BSD licensed. The BSD licensed TCP/IP stack was used in almost all operating systems… Microsoft NT, All Unix systems, and much of it in Linux.

Web Browsers —> Firefox is open source. ‘Webkit’ (derived from KDE software, and used in Apple’s Safari and Google’s Chrome as well as numerous others) are all open source.

Web Servers —> Apache is dominate browser. Google’s services are Apache derived. Ngnx, lighttpd, and most of the software used in CDNs are based on open source software.
http://news.netcraft.com/archives/2011/06/07/june-2011-web-server-survey.html

Linux and FreeBSD —> Open source. These two systems provide the back bones for the busiest and biggest websites in the world. They also provide the platform for the vast majority of systems. Linux superior ‘realtime’ performance has meant that it’s largely replaced commercial Unix systems at the core of major telecommunications and financial networks. It’s core to the realtime trading that goes on in Walstreet and most other major stock markets.

Even things like Apple’s OS X (used in Apple computers) are a conglomeration Apple’s own code with a BSD and GPL derived software and numerous other open source software projects.

It’s easy to see that the vast majority of software used on the internet and world-changing nature of the internet wouldn’t be possible if people decided to depend on copyrights for innovation. Only by shedding and minimizing copyright restrictions was any of this stuff possible; much less commercially viable.

The idea that the only way to make money from software is by restricting people’s access to it via state government threats of violence is just idiotic.

Then when you add patents into the mix the laws cause psychotic levels of damage… economically and sociologically.

Curt Howland June 20, 2011 at 6:34 am

If copyright did not exist, someone would have come up with something like the GPL anyway.

The fact that Microsoft HATES the GPL gives me warm feelings and helps me sleep at night.

It is important to remember that even though Stallman agrees with freedom of software, he is very much a central planner in every other way. He’s smart, he knows he’s smart, and he is convinced that he could in fact run things better than the people who are running it now.

He has never made the intellectual leap to realize that central planning doesn’t work.

Stephan Kinsella June 20, 2011 at 7:19 am

Curt: “If copyright did not exist, someone would have come up with something like the GPL anyway.”

I don’t see how. A license is permission. It only arises when you have the right to stop someone, and then you grant permission. BUt the right to stop flows from copyright. the entire idea of software, music, book etc. licenses would largely evaporate, I think, without copyright law to prop it up. Ie., people could ignore any “license terms” a software designer tried to impose.

nate-m June 20, 2011 at 10:56 am

The early days of software people tried to disregard copyright and just made up foolish licenses and tried to make their stuff ‘public domain’.

This ended up with things like BSD providing TCP/IP for free to Unix and then Unix vendors turning around and suing BSD Unix almost out of existence. They had to re-write their OS from scratch and set them back decades.

Many software writers had good intentions and ended up being sued by commercial vendors for their troubles.

This is why people had to start creating formal licenses and taking this stuff seriously. Now a huge amount of duplicate effort and wasted time is spent around haggling on licensing issues. It’s very destructive.

Wildberry June 20, 2011 at 12:47 pm

@Stephan Kinsella June 20, 2011 at 7:19 am

Curt: “If copyright did not exist, someone would have come up with something like the GPL anyway.”

I don’t see how. A license is permission. It only arises when you have the right to stop someone, and then you grant permission. BUt the right to stop flows from copyright. the entire idea of software, music, book etc. licenses would largely evaporate, I think, without copyright law to prop it up. Ie., people could ignore any “license terms” a software designer tried to impose.

The “right to stop” flows from property rights, which in the case of copyrights, flows from the Act. But you are completely right here. Without copyright, the idea that one can generate revenue from software, music, or book sales would largely evaporate because as you say, people could ignore any assertion of property rights in the production of such intellectual products.

We know from AET that when the subjective value (price) of a good falls below the marginal cost of production, less of that good is produced and scarce resources are reallocated to other means of production.

So once again, we return to the problem that without IP, producers would be producing for external markets, which would, for the most part, eliminate the incentive to produce.

Shay June 20, 2011 at 1:16 pm

Wildberry, the point was that without copyright, there wouldn’t be any need to grant a license for someone to use source code, since the moment they had it they’d be free to use it however the liked. Thus, the GPL probably wouldn’t be possible and all source code would effectively become available as if it were under a BSD-style license (free to use any way). Thus the point of this digression about licenses, and the notion that anything other than BSD is probably not congruent with a libertarian stance.

Kid Salami June 20, 2011 at 1:41 pm

Shay – I’d just like to focus on one thing you said.

“…since the moment they had it they’d be free to use it however the liked.”

I’ve heard this many times. Can i ask why do you say this? When I sell you the software, could I request that you sign to say you won’t make copies of the binaries or redistribute it?

Are you saying this is impossible, that only unconditional transfer is possible? Are you saying that there are no other items on which there can be restrictions like this?

Stephan Kinsella June 20, 2011 at 1:43 pm

Dingleberry, I tire of your dishonesty.

The “right to stop” flows from property rights, which in the case of copyrights, flows from the Act.

YOu IP guys are so dishonest–you always beg the question.

But you are completely right here. Without copyright, the idea that one can generate revenue from software, music, or book sales would largely evaporate because as you say, people could ignore any assertion of property rights in the production of such intellectual products.

This is dishonest. I do not agree that you cannot generate revenue from such sales. You are dishonestly putting words in my mouth. And you combine that with more question begging.

we return to the problem that without IP, producers would be producing for external markets, which would, for the most part, eliminate the incentive to produce.

Nonsense. THere has been innovation invention and creativity before IP law, and there would be after its abolition. Your argument then is that without IP law there is not “enough.” How do you know there is not “enough”?

nate-m June 20, 2011 at 1:55 pm

With software it’s especially apparent because the vast majority of innovation and new discoveries happened well in advance of participators indulging in IP protections.

Companies that embraced copyright made a lot of money, but only a very small fraction of them are able to make money nowadays using only their own closed source software.

The most activity and most creation going on is with software that is based on either actively combating copyright (GPL), combination of combating and ignoring copyrights (Mozilla, CDDL, LGPL, etc), or eschewing them completely (BSD).

The internet and WWW works as well as it does today and most of the infrastructure and technologies that go into required that people abandoned the notion of profit-through-copyright as one of their first steps.

Copyright is not necessary for innovation. Instead they have become a millstone around the neck of innovators and freedom lovers.

This doesn’t compare to patents, however. Patents are actively destructive. The mere pretense that they are responsible for innovation in software would be laughable if it wasn’t so tragic.

Patents have set us back decades.

sweatervest June 20, 2011 at 2:26 pm

“Without copyright, the idea that one can generate revenue from software, music, or book sales would largely evaporate”

Utter nonsense.

You’re telling me that television manufacturers would let what they are producing become worthless because they refuse to pay people to produce creative material?

You’re telling me nVidia won’t pay video game producers and movie producers to do the only thing that makes buying a video card worthwhile in the first place?

You’re telling me Amazon won’t pay people to write books, even though they are trying to sell Kindles?

You’re telling me speaker, receiver and amplifier manufacturers won’t pay people to record music and produce the only thing that makes buying a speaker, receiver or amplifier worthwhile?

You’re telling me owners of concert venues won’t pay musicians to perform live so they can profit from ticket sales?

Etc.

sweatervest June 20, 2011 at 2:36 pm

“The “right to stop” flows from property rights”

Yeah, and there are no property rights in ideas, and no property rights over an entire class of goods (like recording devices) that stems from creating an idea. So, this is entirely irrelevant.

“people could ignore any assertion of property rights in the production of such intellectual products”

There are no property rights in intellectual products. That is like talking about having property rights in love or blue. And since you’re so keen on presenting property rights as a “what can we agree on” scenario, I don’t agree to this, and neither do Kinsella or Peter or Nate or others, so you’re wrong because we don’t agree that any such property rights exist and therefore, according to your own statements, that is sufficient to claim those property rights don’t exist (for those of you that don’t adhere to such a nonsense conception of ethics as what people can agree on, I’m only saying that for the sake of argument).

“We know from AET that when the subjective value (price) of a good falls below the marginal cost of production, less of that good is produced and scarce resources are reallocated to other means of production.”

Which you sneakily turned into said production “evaporating” entirely.

“So once again, we return to the problem that without IP, producers would be producing for external markets, which would, for the most part, eliminate the incentive to produce.”

As I have said before, this is the same reasoning behind the public goods theory but of course you won’t read Hoppe’s chapter on that which is online for everyone to see. According to your reasoning, no one would ever keep their garden pretty because all their neighbors benefit from it. There are positive externalities to me wearing deodorant, so obviously no one would go through the trouble unless they can tax everyone that ever comes in smell-shot of them. Advertisements create positive externalities for everyone that sees them, regardless of whether or not they are convinced to buy what is advertised, so clearly advertisement cannot exist without government laws to force everyone who drives by them to help pay for them. In fact, everyone that produces anything produces positive externalities by showing other people how to produce something and showing them that, at least, production is a worthwhile endeavor. So apparently production never happens because there are positive externalities and people apparently cannot stand making a positive impact on the world without getting compensates by all those who benefit in any way.

I look forward to you ignoring me or calling me a putz and running away with your tail betwixt your legs.

sweatervest June 20, 2011 at 2:38 pm

“Dingleberry, I tire of your dishonesty”

Many have clearly grown tired of it. I at least realize that when someone revolts against my arguments and calls me a putz, I couldn’t possibly ask for a better claim to victory!

sweatervest June 20, 2011 at 2:43 pm

“I’ve heard this many times. Can i ask why do you say this? When I sell you the software, could I request that you sign to say you won’t make copies of the binaries or redistribute it?”

Yes you could do that. And if he puts it on the internet to be copied freely, he has breached your contract and you have a cast against him. But by that point your software is on the internet, and once you destroy the copy he made that will not mean that all the other copies that were made from that first unauthorized copies are gone too. You have no case against the third parties who found your program on the internet and copied it without ever entering an agreement with you. So you can do that, but you must admit that if the guy actually breaches the contract your program is going to be out there for everyone and there is nothing you can do about *that*.

“Are you saying this is impossible, that only unconditional transfer is possible? Are you saying that there are no other items on which there can be restrictions like this?”

Of course not, and frankly that has been clarified enough times that I find it hard to believe anyone is still confused about it. You haven’t been here for most of the IP arguments but this comes up every single time and it is explained by someone every single time. IP as a contract is a completely different issue than IP as a property right (the things that are transferred by contracts). The only kind of IP that can be made through contracts would fail to be IP as it is commonly understood. The reason is that it does not bind third parties. Once the thing you are trying to protect gets out, you may have a case against the person that put it out against your will, but you have no capacity to stop it from further spreading without violating the property rights of people that never entered contracts with you at all.

Wildberry June 20, 2011 at 2:52 pm

@Stephan Kinsella June 20, 2011 at 1:43 pm

Dingleberry, I tire of your dishonesty.

Whoever it is that you are addressing, I hope you have something to back this accusation up. Example?

The “right to stop” flows from property rights, which in the case of copyrights, flows from the Act.

YOu IP guys are so dishonest–you always beg the question.

I am guessing you mean you deny the property status of copyrights in the first place. Yes I know. But what I said is absolutely correct when referring to a thing which IS the subject matter of current copyright protection, which you know. Working backwards, the Act establishes the property interest, and the license grants limited use of that property. If we abolish the Act, a license is meaningless and useless, which you also know.
Dishonesty means saying something which you know is false. Ahem.

But you are completely right here. Without copyright, the idea that one can generate revenue from software, music, or book sales would largely evaporate because as you say, people could ignore any assertion of property rights in the production of such intellectual products.

This is dishonest. I do not agree that you cannot generate revenue from such sales. You are dishonestly putting words in my mouth. And you combine that with more question begging.

OK, I get you are accusing me of some general sin, but what is it exactly? If you make something, and can only keep it secret or give it away, how do you make money from it? How do you contract with someone over something which you do not own? So, what exactly is the business model for intellectual products on “Planet Kinsella”? (Thanks, Nate-m) No fair dodging my question with “It’s a technical problem. Who know what entrepreneurs will come up with?” Let’s hear your thoughts on the economics of intellectual production in a non-IP world.

we return to the problem that without IP, producers would be producing for external markets, which would, for the most part, eliminate the incentive to produce.

Nonsense. THere has been innovation invention and creativity before IP law, and there would be after its abolition. Your argument then is that without IP law there is not “enough.” How do you know there is not “enough”?

Well, my first point is, how could one possibly know?

On the one side, we have 200 years of history of economic development with IP, (just to make it simple.) The record speaks for itself.

On the other side we have speculation about 1) how our technological society WOULD have evolved in the absence of IP (and perhaps even the state in general) since the beginning of the Industrial Revolution, and 2) how our current technological society would react to an abolition of IP from this point forward.

From these musings, one is supposed to feel some assurance from you that we would all be better off without IP.

Second, I don’t recognize my argument in your question about what is “enough”. Producers who do not benefit from their own production do not produce for long, for the most part. AET. LvM.

When one abolishes the concept of private property and private means of production, one must expect some consequences. You seem to think that applies to a free market philosophy in every way except for when it comes to the production of intellectual products. Yet you fail to explain your theories concerning why you hold that in this no-IP instance, the concept of private property can be dispensed with, yet we all somehow end up better off.

I’m all ears.

sweatervest June 20, 2011 at 3:13 pm

“Whoever it is that you are addressing, I hope you have something to back this accusation up. Example?”

Avoiding my systematic refutation of your conception of property rights by changing the topic suddenly to how arrogant I am. I can provide direct quotations if you would like.

sweatervest June 20, 2011 at 3:16 pm

“what exactly is the business model for intellectual products on “Planet Kinsella”? (Thanks, Nate-m) No fair dodging my question with “It’s a technical problem.”

I literally answered that question in detail a couple of posts above, and did not include “it’s a technical problem” anywhere. I have explicit details about how intellectual products, at least those involving copyright, would be produced. You just ignore my posts because I crush your arguments every time and the only way you can “win” the argument is to run away with your tail between your legs.

Also, its dishonest to say your question hasn’t been answered two or three posts after it has been answered.

sweatervest June 20, 2011 at 3:19 pm

“When one abolishes the concept of private property and private means of production”

This is very clearly dishonest and purposefully confusing as everyone one of the anti-IP arguers have already explained in detail that they are not attacking the concept of private property (you have done a good job of that yourself by reducing property rights to whatever the hell people say they are) and you speak of the “means of production” being communalized without identifying a single one.

No, you are fully aware that we are not attacking property rights themselves and have never bothered to answer those arguments. Thus, it is clearly an act of dishonesty to misrepresent our position as being anti-property even though it has been explained to you over and over that it is not at all anti-property.

Keep giving us more examples of your dishonesty.

Wildberry June 20, 2011 at 3:56 pm

@nate-m June 20, 2011 at 1:55 pm
Nate-m, you obviously have some skills and knowledge in this area. I do respect that. Let’s see if we can discover some common ground.

With software it’s especially apparent because the vast majority of innovation and new discoveries happened well in advance of participators indulging in IP protections.

One explanation for lack of IP protection in the fashion trade is velocity; it moves too fast for the cumbersome mechanisms of IP protection. I think some of this might be true in the case of software development, especially as it pertains to the introduction of new hardware platforms, which is driving much of the demand.

Also, I claim no expertise in the history of the internet, although I am not a complete stranger to the field, though I come from the hardware side of technical innovation (semiconductors). I would observe that one important competitive factor in both hardware and software is adoption rate. As has been described elsewhere, even with complete IP protection, word processing, spreadsheet and database software dominance has made several major shifts during the past 25 years. So innovation and adaption rates have a strong competitive drive behind them that allow for successful competition even with complete and vigorous IP utilization.

Second, there is a book you may be familiar with, Innovator’s Dilemma, which describes how innovation takes over established technology leaders from underneath and through adaption velocity, leaving the established market leaders without a competitive response. He relies heavily on the history of hard drives to illustrate the point.

Third, in mature markets especially, entrepreneurs have a way of discovering ways of competing by changing the rules of the game. I think there is evidence of this in the FOSS innovations you describe, as well as the experimentation that is going on in publishing and music distribution. Not everyone that has IP rights available to them chooses to use them in traditional ways.

In these examples, we can observe that the market is dynamic, competitive and innovative, WITHIN a market context which includes IP. Therefore, we cannot say categorically that IP inhibits the free market. Markets innovate around obstacles and exploit opportunities. IP is not an absolute factor on either side of that dynamic.

Companies that embraced copyright made a lot of money, but only a very small fraction of them are able to make money nowadays using only their own closed source software.

I agree that the markets are continuing to evolve and innovate. Don’t forget that with copyrights, all protections are temporary (though perhaps too long under current terms). But I don’t think the cost of using proprietary software is driven only by IP. What I mean is that the business model for the consumer of software and services are exploiting available means to deploy software for lower costs. One major cost in deploying proprietary software is the captive source for upgrades and support and development, and the very high switching costs. This has to have some impact on the range of options that become available in the markets, and FOSS is one response. As I understand the industry, companies who support FOSS are making their money on professional services, not licensing fees. That is an open market response that will eventually, and perhaps is significantly already affecting market monsters like Microsoft.

The most activity and most creation going on is with software that is based on either actively combating copyright (GPL), combination of combating and ignoring copyrights (Mozilla, CDDL, LGPL, etc), or eschewing them completely (BSD).

If you add the major proprietary software vendors like Msft, Oracle, SAP, etc., this is about the entire software industry. FOSS and proprietary software are adapting to each other. There is nothing about this that is incompatible with IP; it is a free-market choice based on the only real free-market axiom; Consumers Rule.

The internet and WWW works as well as it does today and most of the infrastructure and technologies that go into required that people abandoned the notion of profit-through-copyright as one of their first steps.

This is a deep subject and beyond my expertise. However, one factor was the origin of the system; DARPA. This is similar to Unix history, in some ways. Second, the adoption factor far outweighed the need to complete with proprietary versions of the early internet. From the outset, it was the universal connectivity that generated the market opportunities, both on the software (applications) and hardware (infrastructure) sides of the technology. I think that was well recognized in the development and adoption of the internet. All this took place in a market where copyrights and patents were available to everyone. My point is that even where it is available, it is not always the preferred path, and it does not prevent the free-market actors from choosing a different path if that is desirable for some reason.

In semiconductors, the industry, saturated with patent opportunities, moved from proprietary IC’s to JEDEC standards. This changed the nature of competition in a multi-billion dollar industry. Software is no different in this regard.

Copyright is not necessary for innovation. Instead they have become a millstone around the neck of innovators and freedom lovers.

I agree with your first sentence. I have supported that idea above. I disagree with the second. I don’t see where it has been a major factor holding the market back. It is a choice that is utilized in some situations and not in others, or in combinations. If it becomes a true millstone around our necks, it will be abandoned as useless. We do not appear to have arrived at that juncture as yet.

This doesn’t compare to patents, however. Patents are actively destructive. The mere pretense that they are responsible for innovation in software would be laughable if it wasn’t so tragic.

Patents have set us back decades.

Well, I have focused mostly on copyrights, because the principle of IP, which I support, is strongest for copyrights. I do recognize, as has Congress and the courts, that patents are a much stronger right, and therefore by design are supposed to have both a higher threshold for securing property rights, and a shorter term of protection.

Many of the objections Kinsella raises I can actually agree with, for example the disruptive influence of NPE’s and the escalating costs of defensive patents. But this does not disturb in my mind, the principle of patents, which essentially share common objectives with copyrights; securing private property interests in the private means of production, while encouraging open public access to knowledge and innovation.

As to whether it has set us back decades or not, despite the arguments of Kinsella, Levine and others, that is mostly a matter of speculation. I am not as sure about that as I am that securing private property rights in private production of intellectual works has a place in free markets and free societies.

Wildberry June 20, 2011 at 4:09 pm

Sweatervest:

Your posts are like drinking from a fire hose.

If all the things you suggest are such a good idea, why aren’t they already doing them?

Amazon can get in the publishing business now, so why don’t they? Take one issue and think it all the way through.

Start with this one: If it makes sense to you, but the people who are actually in the business aren’t doing it, why to you think you must be right and they are wrong?

Does this give you any reason to pause for reflection? Amazon is not stupid. They didn’t just overlook a market opportuntiy that only you can see so clearly. Can you acknowledge that I might have a point?

Kid Salami June 20, 2011 at 5:25 pm

sweatervest

“And if he puts it on the internet to be copied freely, he has breached your contract and you have a cast against him.”

Yes.

“But by that point your software is on the internet, and once you destroy the copy he made that will not mean that all the other copies that were made from that first unauthorized copies are gone too. You have no case against the third parties who found your program on the internet and copied it without ever entering an agreement with you.”

Let’s say the binaries are stored on some physical “item”, say a CD. So you’re saying that if the original buyer sells this “item“ to a third party, then if these two criteria are satisfied:
1. the original buyer has title to the “item” containing the installer
2. the third party is not part of any conspiracy but is simply putting in a bid for the “item” to a guy he just met in a marketplace as per the accurate description of the function of the “item” (ie. the software it installs).

then the third party can walk away with this CD and any restraint on their use of it would be aggression. And if he does satisfy these criteria, it is totally irrelevant what might be burned “on” that CD in the form of a code.

You agree with this yes?

Say I own some land which is the servient estate of an easement – a nonapparent negative predial servitude, which prohibits me from using the property for, say, commercial or industrial purposes.

I sell this land to someone in an auction, someone I just met and who was not part of any conspiracy. I don’t tell him about the easement. He has a claim against me as clearly I defrauded him, but I’ve ridden off into the sunset to blow the money on coke and hookers so we can ignore this.

So, he wants to start a business on the land. The dominant estate tries to stop him. It is my understanding that in at least some cases that the servitude is deemed to “run with the land” and so the third party is out of luck and is told he must not use the land for industrial purposes or else face a fine/jail.

There is to me something that needs to be resolved before we say that restraining the third party in the first scenario is aggression but it is not in the second. Do you agree?

If you disagree, then what precisely is the difference? Why is restraining the third party aggression in the first case aggression but not in the second?

For example, one answer might be that in the second case that the existence of an easement means that we do not satisfy the first criterion – that I did not in act have title to the land. Or perhaps you have another answer?

Note again that I’m not saying there isn’t a difference, so please don’t go off on a rant about how stupid I am. Can you just tell me precisely what the difference between the two cases is, in your view.

“Of course not, and frankly that has been clarified enough times that I find it hard to believe anyone is still confused about it.”

Please don’t assume I’m confused when I ask a question, I just want something to work from. If other people spent more time asking questions to boil the issue down to its essentials instead of just being in transmit mode all of the time, these debates wouldn’t be so ludicrously unproductive.

Stephan Kinsella June 20, 2011 at 5:47 pm

Dingle:

“YOu IP guys are so dishonest–you always beg the question.”

I am guessing you mean you deny the property status of copyrights in the first place.

Yet more outrageous dishonesty and begging the question in one sentence. the burden is on you to justify rules that undermind property rights in things we all agree are property–scarce resources.

Dishonesty means saying something which you know is false. Ahem.

Yes. Your stating that I agree that there would be no incentives to produce absent IP. Lies.

I get you are accusing me of some general sin, but what is it exactly?

It was your putting words in my mouth to make it appear like I agreed with your IP perspective on things. You know I do not.

If you make something, and can only keep it secret or give it away, how do you make money from it?

Sell it? Anywya, a quesiton is not an argument.

Well, my first point is, how could one possibly know?

Exactly. One cannot.

On the one side, we have 200 years of history of economic development with IP, (just to make it simple.) The record speaks for itself.

And with taxes, antitrust law, war, tarrifs, and racism!

From these musings, one is supposed to feel some assurance from you that we would all be better off without IP.

No, that IP is unjustified and robbery.

Stephan Kinsella June 20, 2011 at 5:50 pm

Wildberry: “Many of the objections Kinsella raises I can actually agree with, for example the disruptive influence of NPE’s and the escalating costs of defensive patents. But this does not disturb in my mind, the principle of patents, which essentially share common objectives with copyrights; securing private property interests in the private means of production, while encouraging open public access to knowledge and innovation.”

Of coures it doesn’t disturb it, becuase you are concrete-bound and utterly unprincipled. And ideas are not a means of production. They are free goods, background conditions of action, guides to action. action employs means (scarce goods), and is guided by knowledge. Knowledge is not the means of production.

Wildberry June 20, 2011 at 7:02 pm

@Stephan Kinsella June 20, 2011 at 5:47 pm

I am guessing you mean you deny the property status of copyrights in the first place.

Yet more outrageous dishonesty and begging the question in one sentence. the burden is on you to justify rules that undermind property rights in things we all agree are property–scarce resources.

Is that a yes? How is it you can be all bunchy when I’m merely restating your position?

In case you haven’t noticed, we don’t all agree on what is property. You really haven’t noticed? Because to say you didn’t notice when you actually did notice would be dishonest.

As to the burden thing, we’ve been over that too. I believe both sides of an argument have the burden for their own argument. It would be nice to just sit back, like a defendant in a criminal case, and not have to take the stand, but that’s not very, well, academic, is it?

To state ones position is not begging the question. I hold that property is a human device, and as such, homesteading and scarcity are not the only arguments that support the security of property rights. I do grant that homesteading would be one way, but the reality is that the exceptions to the homesteading rule swamp the rule itself.

I have also made it clear that the scarcity/rivalrous use argument does not exclude IP as property. The only way to make that argument work is to equivocate that “ideas” and IP are indistinguishable. You are a master at that argument.

Dishonesty means saying something which you know is false. Ahem.

Yes. Your stating that I agree that there would be no incentives to produce absent IP. Lies.

Lies, Lies! A pox on my house! I have asked you a zillion times now, if you disagree with Mises about external economies, then what is your argument? All I’ve heard so far is “it’s a technical problem” and “There is no limit to what entrepreneurs will come up with”. I don’t find that to be an answer, and in the absence of that explanation, and your assertion about the options of an author under your property rules (secrecy or gratuity), you have yet to explain what you think that incentive would be.

OK, let’s say arguendo, you have a clean piece of paper. What are the incentives to produce absent IP?

I get you are accusing me of some general sin, but what is it exactly?

It was your putting words in my mouth to make it appear like I agreed with your IP perspective on things. You know I do not.

Sorry, but I would be amazed if anyone who visits this blog thinks that you and I agree on much. I have paid you the respect of memorizing your arguments. I feed them back to you and ask you about this and that. You respond by calling me dishonest, which you have absolutely no grounds to support. I don’t have to agree with you to be honest, but I you don’t’ have to be disagreeable to disagree with me. How about we raise the game a little?

If you make something, and can only keep it secret or give it away, how do you make money from it?

Sell it? Anyway, a question is not an argument.

I agree (see, I guess we can agree). A question is a question, and begs for an answer. What is yours? It seems to me that you have painted yourself into a corner that asserts that the world of IP-less would be better, yet you can’t seem to say exactly how, in economic or business terms. Surely you have opinions.

Well, my first point is, how could one possibly know?

Exactly. One cannot.

See we agree yet again.

On the one side, we have 200 years of history of economic development with IP, (just to make it simple.) The record speaks for itself.

And with taxes, antitrust law, war, tarrifs, and racism!

And you hold IP directly responsible for all of that?

From these musings, one is supposed to feel some assurance from you that we would all be better off without IP.

No, that IP is unjustified and robbery.

And you accuse me of begging the question!

@Stephan Kinsella June 20, 2011 at 5:50 pm

Wildberry: “Many of the objections Kinsella raises I can actually agree with, for example the disruptive influence of NPE’s and the escalating costs of defensive patents. But this does not disturb in my mind, the principle of patents, which essentially share common objectives with copyrights; securing private property interests in the private means of production, while encouraging open public access to knowledge and innovation.”

Of coures it doesn’t disturb it, becuase you are concrete-bound and utterly unprincipled.

Ouch!

And ideas are not a means of production. They are free goods, background conditions of action, guides to action. action employs means (scarce goods), and is guided by knowledge. Knowledge is not the means of production.

See I agree with all of this too. Yet I disagree with your position on IP. There must be a problem with the use of terms, ya think?

sweatervest June 20, 2011 at 11:15 pm

“Your posts are like drinking from a fire hose.”

Haha well it’s only because of the ad hominems. I would like as much as I’m sure you would to drop all the pointless flaming.

“If all the things you suggest are such a good idea, why aren’t they already doing them?”

Well first of all, to nitpick as I always do, this is a valid question, and I think it has an answer, but even if I have no idea what the answer is that does not invalidate my point. This argumentative form can get you in trouble. It seems to suggest that everything everyone does is a good idea!

But we can ignore all that here, for my answer to that question is simple: I’m describing a market without IP, and this is a market with IP. It’s the same reason why public security and roads are dominant and yet I am unshaken in my belief that private security and roads could function better. That IP exists means that distribution companies and studios like the RIAA and MPAA serve to make huge profits and they can employ creative people. There is, at least as far as those producers seem to think, a sufficient amount of creative work around right now.

Let’s focus on one example, which I think will make it easier to illustrate my point. Consider video games. That nVidia does not (to my knowledge) finance video game production means they would consider that a waste. There is already enough video game production going on without their help that their video cards are valuable enough to be sold at a profit (or even the highest profit expectable).

Now imagine that tomorrow IP laws were modified to completely exclude video games. Now we seem to agree on what would happen next: those currently financing video games would go bankrupt and out of business, and video game producers would be out of work. nVidia will freak out about this. They serve to lose just as much as anyone else by the evaporation of a video game market. That such a market exists and is big enough is necessary for their productive efforts to be profitable at all (and boy are those some big profits for them!). Thus, at the risk of going bankrupt themselves, they will either begin immediately financing video game production out of fear that it would subside without those efforts, or they would see video game production dwindle along with their own sales and respond to that by financing new video game production.

The reason they don’t do that now is they don’t need to. IP allows distributors to maintain high profits and finance creative production. nVidia’s video cards are profitable without nVidia having to finance video games, for example. But if what you are worried about (which I agree would happen) is true that the current backers of creative work would go bankrupt if IP were abolished, all these companies would jump in to fill the gaps because it is necessary to do so for them to stay in business at all.

So, to summarize, they’re not doing that now because of IP. Without IP, they would do that. There are profits to be made in anything that people desire. That is how I conceived of this solution. Just think: people want to consume creative goods, and doing so requires economic activity. Just pinpoint the scarce goods whose production is necessary to enjoy the creative works, and they will be the ones whose profits require creative production and therefore can be expected to fund said production as necessary.

There was a time when the only way you could read a book is to buy a copy of it (regardless of whether it is authorized or not). Or to see a movie you would have to go to a theater. Or to listen to recorded music you would have to buy a record of it. Thus the producers of the scarce goods necessary to enjoy creative work, which in these cases are the distributors of copies, came in to fulfill the necessary role. But technology has revolutionized how creative works are consumed. Instead of having to buy a book for every book you want to read, or a record for every album you want to hear, you just need to buy a Kindle, or an iPad or just a computer (for books), a stereo system and a computer (for music) and for both, an internet connection.

In fact, now that I think of that, another big supporter of creative works in such a market would be internet service providers. Being able to download millions of books, songs, videos, etc. makes having an internet connection way more valuable.

So now these days that the way creative works are consumed has fundamentally changed, the big established market participants (distributors) have found themselves suddenly worthless and facing bankruptcy, to be replaced by a new market better fit for this new technology. That is why it is the distributors, not the creative people, that are the principle proponents of IP and the principal sources of IP lawsuits. IP, while maybe not starting off with these intentions (though Kinsella has shared historical accounts that contest that) has become principally a way for outdated market participants to maintain their high status. Classic protectionism.

All of that of course applies only to copyright. I have similarly thought of how a lack of patents would change the market, and what I see happening there is that more producers compete to produce off inventions, and produce using many inventions instead of just a few expensive-to-license ones. They would want to hire people who have a knack for inventing things so they can be the first producers of that invention and gain the small but only advantage any producer can ever expect to get in this highly competitive situation, which is producing slightly earlier than everyone else. As a result good inventors will have their wages bid up higher by more producers competing to have them in their companies.

As for trademarks and trade secrets I have not thought extensively about what changes would happen there.

“Amazon can get in the publishing business now, so why don’t they? Take one issue and think it all the way through.”

They don’t need to. IP is keeping creative production afloat, which is good enough for them. If IP were to disappear I’m sure they would not hesitate to fill in the new void.

“Start with this one: If it makes sense to you, but the people who are actually in the business aren’t doing it, why to you think you must be right and they are wrong?”

Simple: they are different situations. I’m just describing a potential way a market could provide creative work sans IP (it would work, wouldn’t it?). In fact I don’t even claim that things would necessarily work that way. I may not be creative enough to imagine the way things would really work. But I did all I think I need to do, which is defeat the claim that such a market is impossible by presenting at least one example of such a market.

“Does this give you any reason to pause for reflection? Amazon is not stupid. They didn’t just overlook a market opportuntiy that only you can see so clearly. Can you acknowledge that I might have a point?”

I think I understand your point, but IP would be the least of my worries if I actually thought what people do is the best idea. After all, we are entrenched in statism right now and I still think that is a disaster. It is a good question: if my idea of a better society is actually better, why isn’t everyone doing it? There are a million possible answers to that question and in the general case I cannot pretend to know the answer. But does this count as a refutation of my claims? Only if you can show that there could not be an answer to that question at all.

sweatervest June 20, 2011 at 11:51 pm

“then the third party can walk away with this CD and any restraint on their use of it would be aggression. And if he does satisfy these criteria, it is totally irrelevant what might be burned “on” that CD in the form of a code.

You agree with this yes?”

No. Correct me if I have misinterpreted your scenario but this sounds to me like if, for example, I buy a Rolex watch off a street vendor that happens to be stolen. Now I am not a robber or thief for doing that, but as soon as the rightful owner tracks his watch down I would be unjustified to not give it back to him. He has the right to take back from me what is rightfully his, and if I have a problem I need to take it up with the street vendor that took my money in exchange for stolen goods (possibly a fraudulent act on his part, depending on the details).

So, in this case, if the person you sold your CD to gave it, as a breach of contract, to me, the third party, then you could come get your CD back from me. But what if, before you do this, I rip the CD onto my computer? Sure, you can get your CD back, but you certainly cannot erase the copy I stored on my computer additionally. You have no right to that because that is unambiguously my property: my hard drive (or if I copied the CD onto another CD, I copied it onto one of *my* CDs). So sure you could get back the original copy from me, but once I make additional copies from that copy (and remember I, the third party, never agreed to not do that) you have no claim over those additional copies. As soon as one unauthorized copy comes into existence your idea has left your control. You unambiguously own the copy you created (the original copy), but the pirate unambiguously owns the copy he created (the unauthorized copy).

Consider the case of the stolen watch again. What if I use your stolen Rolex which I bought from a street vendor to time how fast water comes out of my sink and then adjust the flow so that water comes out at a specific rate? You come along and claim that is your watch and I must return it, and I agree I must. But what if then you claim that I used your stolen watch to improve my sink (which I did), and that means you can readjust my sink back to what it originally was? Is that a valid claim? I wouldn’t think so. Sure, I used your stolen property to do something else with my property, but surely that doesn’t mean that, in additional to have returned to you what is rightfully yours, you can undo all the things I did with your stolen property that were not themselves property violations.

“I sell this land to someone in an auction, someone I just met and who was not part of any conspiracy. I don’t tell him about the easement. He has a claim against me as clearly I defrauded him, but I’ve ridden off into the sunset to blow the money on coke and hookers so we can ignore this.”

That sounds fun!

“So, he wants to start a business on the land. The dominant estate tries to stop him. It is my understanding that in at least some cases that the servitude is deemed to “run with the land” and so the third party is out of luck and is told he must not use the land for industrial purposes or else face a fine/jail.

There is to me something that needs to be resolved before we say that restraining the third party in the first scenario is aggression but it is not in the second. Do you agree?

If you disagree, then what precisely is the difference? Why is restraining the third party aggression in the first case aggression but not in the second?”

Well in this case you cannot sell something you don’t own. If you have a title to land with easements (avoiding for now the easements prescribed by the state and only focusing on easements established by contracting) then you are not its owner, you are in a contract with someone who allows you conditional use of their land. So of course claiming to sell this land to someone is defrauding him because you have in reality sold him nothing, not being in a position to sell this land anyways. So in fact he wouldn’t be able to do anything on this land! He has no claim to it, and if he wants his money back (without going through insurance), he’s gonna have to go on a coke and hooker hunt off into the sunset!

Also, the other difference I think is important is that in this case the third party is attempting to use another person’s property without permission (the land he thinks he bought but did not). But in your case of the CD if you tried to get rid of the unauthorized copies the third party made that is the third party’s property (sure he used your property but before you tracked him down and took back what is yours). In that case it would be the author who is trying to use the third party’s property, mainly his computer or whatever he used to store the additional, unauthorized copy. In your second case the third party is stopped from using what is not his, the land. In the first case the third party is also eventually stopped from using what is not his, the CD you sold under contract (and you are of course justified in using force to get your CD back). But if by the time you have used the force you are justified to use to get your CD back, another copy of your idea has been made from that CD and stored on property that *never* belonged to you, then you have no claim of ownership over that property.

“Note again that I’m not saying there isn’t a difference, so please don’t go off on a rant about how stupid I am.”

I’m very sorry you got that impression from me, which was not at all my intention. I don’t think I can assess anyone’s intelligence over an internet forum. Anyways, please accept my apology for this miscommunication.

“Can you just tell me precisely what the difference between the two cases is, in your view.”

I’ve done the best I can for now at 12:30 at night when I should be sleeping. I look forward to delving deeper into these problems.

“Of course not, and frankly that has been clarified enough times that I find it hard to believe anyone is still confused about it.”

“Please don’t assume I’m confused when I ask a question, I just want something to work from.”

Well, if you recall, I said I find it hard to believe you would be confused. I thought you were engaged in a straw man but I will concede that was wrong. Your question is valid so long as we acknowledge that the anti-IP side has never attacked a person’s physical property rights, including the right to the physical copy containing any creative work. The implication is not, at least as far as I can tell, that being anti-IP means thinking people cannot contract with and protect their physical copy as much as they could with any other piece of physical property they own.

“If other people spent more time asking questions to boil the issue down to its essentials instead of just being in transmit mode all of the time, these debates wouldn’t be so ludicrously unproductive.”

You very well may have a point here!

Wildberry June 21, 2011 at 10:35 am

@ sweatervest June 20, 2011 at 11:15 pm

You seem to misunderstand much of what I say. The reference to the firehose was not ad hominem. I was making a reference to the volume of your posts and how you fire a round at each issue and move on to the next. It is like listening to music with no silence in it. A little white space in your posts woudl be of help.

But does this count as a refutation of my claims? Only if you can show that there could not be an answer to that question at all.

I am merely pointing out that you are speculating. The pro and anti IP sides of this debate have different problems here. The pro side at least has actual practice and history to refer to; the anti side has to rely on pure speculation. That means your speculative “solutions” need to be backed up with something plausible. To dismiss the entire problem with “entrepreneurs will figure something out” is not very persuasive.

Wildberry June 21, 2011 at 10:56 am

@ sweatervest June 20, 2011 at 11:51 pm

I know this is a converastion between you and Kid Salami, but I wanted to make one comment on this:

Your question is valid so long as we acknowledge that the anti-IP side has never attacked a person’s physical property rights, including the right to the physical copy containing any creative work. The implication is not, at least as far as I can tell, that being anti-IP means thinking people cannot contract with and protect their physical copy as much as they could with any other piece of physical property they own.

Perhaps you can see how you gloss over the central issue with this statement?

Your use of the term “physical property” assumes your conclusion that property rights extend only to the physical fixation and the materials of the medium, not the work itself. So when I have an original manuscript of a novel, for example, if I share that novel with anyone, what is actually fixed on the paper has no property rights attached to it.The property rights “slight of hand” is to claim that there can be no property rights in the intangible “work” because “ideas are free”. Of course, the “work” is the issue, and the property around which property rights must operate. You dismiss this entire line of reasoning, that property does not depend upon “physicality” to be operational as a device for securing ownership rights in a thing.

The idea that you can control the work through contract is also slight of hand. If the work cannot be property, it cannot be owned. If it cannot be owned, it cannot be the subject matter of a contract. So breach of contract terms which prohibit use of the work cannot be enforced.

It is inaccurate to claim that property rights are not denied to the author’s work. What is actually meant is that the author can own the paper he uses to fix a work upon. Hardly a recognition of property rights in the work.

sweatervest June 21, 2011 at 3:07 pm

“You seem to misunderstand much of what I say. The reference to the firehose was not ad hominem.”

Oh I know I thought you were just telling me I’m too, well, “animated” as you call it. :p

“I was making a reference to the volume of your posts and how you fire a round at each issue and move on to the next. It is like listening to music with no silence in it. A little white space in your posts woudl be of help.”

Haha you should hear the music I listen to. I typically get responses like, “Dude, this is too much. Can we listen to something a little more chill?”

“I am merely pointing out that you are speculating.”

Ah but we are all speculating! You may have historical cases of IP being present to draw on, but that alone does not support the pro-IP side. To do that you must argue that the innovation coinciding with IP laws is *because of* IP, not *despite* IP. This reminds me of what some have said to my anarchist ramblings: history is filled with states and we know they work, but this ancap stuff may turn out to be a pipe dream. My response is always, “but we don’t know automatically that the success of society up until now is because of those states, or despite those states.”

More specifically, the pro-IP position involves the speculation that without IP innovation would be less than it actually was. The crucial aspect is the comparison of IP present with IP absent. Whichever one is the historical precedent, each side must speculate on what the other one would entail.

“That means your speculative “solutions” need to be backed up with something plausible.”

Certainly. But in the same way, the claim that the innovation we have is due to IP and not in spite of it (or even irrelevant to what laws exist) must also be backed up with something plausible.

“To dismiss the entire problem with “entrepreneurs will figure something out” is not very persuasive.”

I agree, and that is the trick Marx pulled concerning how wonderfully communism would work. His explanation was little more than, “it’ll work”. Maybe so but as debaters right now that hardly helps us. So I agree that something substantial should be put forth, but I also think there is a kernel of truth to what Marx was saying. Only a socialist (yes, ironic in the context of Marx) would describe exactly how his ideal society would look: how many firms are in what business, where different firms are located, who works for what firms, etc. So I do think it would be overstepping our bounds to present a completely detailed central plan of what would happen (especially if one is opposing central planning!). But, as we seem to agree, that doesn’t mean we have to shy away entirely and draw a big question mark.

“Perhaps you can see how you gloss over the central issue with this statement?”

Well I can see how it seems that way but I don’t think so because Kid’s question was not about the prospects of property rights in the creative work itself. He was concerned that the anti-IP position is actually a compromise of physical property rights (things that are least debated much less than other kinds of property rights) and I only aimed to dispel that. I only intended to show that being anti-IP does not change anything about the physical property rights one would have in the copy of the work he creates (the original copy). I did not intend for that to be a proof or evidence that property rights in anything else are unsound, only an answer to the question, “can one oppose IP without attacking one’s ability to contract with his *physical* property”, the answer being yes.

“Your use of the term “physical property” assumes your conclusion that property rights extend only to the physical fixation and the materials of the medium, not the work itself.”

No I was only dealing with how the anti-IP position affects physical property rights, particularly that it does not interfere with a person’s ability to contract with his physical property. The question of whether or not another property right exists in the work itself is a different problem (an important one of course but not the content of Kid’s question). Kid was wondering if IP could be established through contracts, and I only aimed to explain that no, at least not IP as it is commonly understood. As you seem to be pointing out, contracts cannot produce IP rights, those would have to be additional rights that exist independent of any contract.

“So when I have an original manuscript of a novel, for example, if I share that novel with anyone, what is actually fixed on the paper has no property rights attached to it.”

To be perfectly clear, I am now shifting to this actual problem and will begin arguing why I think there cannot be a property right attached to what is fixed on the paper. My reasoning is that the thing fixed on the paper cannot be used up. That something can be used up and depleted is, as far as I can tell, the only reason why property rights would ever come into play. If you using good A partially or completely depletes its usefulness then I, assuming I have some claim to be its rightful user, would understandably protest anyone using (and through that depleting the usefulness of) my good and would thus exclude its use, for one simple person: so I can make full use of the good, that it never gets depleted without me using it.

The thing fixed on the paper cannot be depleted or used up. That is what it means to say the thing is non-scarce. Consider a recipe. You can make a meal from it, and then the recipe is no less capable of producing a meal than it originally was. Several people can look on at once (so long as the physical medium containing the recipe allows multiple onlookers) and make several meals at once, and the recipe is still as useful as it ever was.

So what purpose, then, would there be in the author of the recipe being able to exclude the use of the recipe itself (keeping in mind that if there is only one copy and he owns that copy, he can exclude use of that all he wants)? Someone else using it does not make it less useful for him. It does not deplete it partially or completely, leaving less uses available to the “owner”. What would such ownership accomplish. As Kinsella and I agreed on in the last thread, the only reason it seems is born out of an insistence that authors or creative things should get to dictate who uses their creative works and in what way. They do not, and this is fundamentally different from anything that we agree can be owned, find themselves unable or less able to make use of their “property” when its use is not excluded. The only concern seems to be a simple desire that authors “should” have such a right. Even if that is true, it would be for a completely different reason than owners of rivalrous goods excluding use of those goods. They must exclude to be able to use themselves. There is no concern like that for the creative work itself.

“The property rights “slight of hand” is to claim that there can be no property rights in the intangible “work” because “ideas are free”.”

I think you simply took my argument as being more than it really is, for nothing I said to Kid is intended to support in any way that there cannot be additional intellectual rights.

But as for the “ideas are free” thing I’m actually beginning to think that ideas are not goods at all. Ideas affect the value of goods but are not goods themselves, for the simple reason that there is really no such thing as “use of an idea” but only use of a physical good (only because we live in a physical world) that is guided by an idea. Ideas are useful but not goods in the economic sense, which I concluded after re-reading an early part of Human Action in which Mises explains that for something to be recognized as a good it must be recognized as both useful and scarce. Since ideas are not scarce (in the sense that one can never “run out” of a good idea) they cannot be economic goods. They only affect the value attached to what *are* economic goods. And “free” in this sense would only be applicable to an economic good. Now this approach is in its infancy and so I request that you consider it separately from the rest of what I said (not that you shouldn’t take it on with all your argumentative might), since I only recently concluded this and was obviously anti-IP long before I made that conclusion.

“Of course, the “work” is the issue, and the property around which property rights must operate. You dismiss this entire line of reasoning, that property does not depend upon “physicality” to be operational as a device for securing ownership rights in a thing.”

Right I don’t simply start with “to own something it must be physical.” Now to be clear that *is* a conclusion of my property rights theory (and Hoppe gives many reasons for why property rights must be defined in objective, physical terms in order for them to serve as a means to resolve conflicts rather than cause additional ones. He takes on directly property rights theories that define boundaries of property in terms of subjective, value-based terms. That’s all in “Economics and Ethics of Private Property”). But it is a conclusion arrived at from a more basic starting point, which is the rivalry criterion (actually, depending on how deep we want to philosophize, that is not my starting point either, and I would take it further back to the recognition that there are only two types of interactions: ones that are mutually beneficial and therefore desired by both involved parties, which I call “cooperative”, and all other interactions which I call “violent”, and that everything I say about property rights stems only from restricting one’s self to interactions that are cooperative, not violent).

“The idea that you can control the work through contract is also slight of hand. If the work cannot be property, it cannot be owned. If it cannot be owned, it cannot be the subject matter of a contract. So breach of contract terms which prohibit use of the work cannot be enforced.”

This is, it sounds, essentially why contracts cannot establish IP. We seem to be in agreement that the debate is not over what rights can be transferred conditionally through contracting, but what those rights are to begin with.

“It is inaccurate to claim that property rights are not denied to the author’s work. What is actually meant is that the author can own the paper he uses to fix a work upon. Hardly a recognition of property rights in the work.”

Well I would not attempt to claim that an author has a right to his work in what I am proposing. It is clear that he does not, and I am really trying (here, not in my response to Kid) to explain why he shouldn’t have such a right! I just wanted to clear up that him not having a right in the work itself does not imply he has lost any physical property rights. In fact, as I’m sure you know by now, I would argue that giving an author a right in the work itself transfers other *physical* property rights out of the hands of their current owners and into his hands!

sweatervest June 21, 2011 at 3:13 pm

Whoops I found a typo and don’t want to edit the post and re-enter all the blank lines between paragraphs!

“for one simple person: so I can make full use of the good, that it never gets depleted without me using it.”

This should be “for one simple *reason*”.

That wasn’t really a typo but more my dyslexia!

Kid Salami June 23, 2011 at 9:06 am

sweatervest – you’re just transmitting and not making the effort to understand the point I’m making.

“So, in this case, if the person you sold your CD to gave it, as a breach of contract, to me, the third party, then you could come get your CD back from me. But what if, before you do this, I rip the CD onto my computer? Sure, you can get your CD back, but you certainly cannot erase the copy I stored on my computer additionally. You have no right to that because that is unambiguously my property: my hard drive (or if I copied the CD onto another CD, I copied it onto one of *my* CDs).”

I’ve heard this a million times. You are saying that because you “own” the hard-drive, you can do what you like with it and any restriction on this would be aggression, yes?

Let’s apply this to land. When I am sold land, I can do what I like with it right? Seemingly yes – except when it is the servient estate of an easement. If I buy this land and am not told about the easement, then I have clearly been defrauded and I have a claim against the seller. But in my scenario the seller is long gone. It is the dominant estate owner – a person with whom I have NO agreement or contract – that is forcing me not to use it for commercial purposes.

You might say that in the case of an easement like this then I do not “own” the land outright, as I suggested as an option earlier. I would say that this is an answer at least but then would say that the entire concept of ownership then becomes meaningless and so would have other questions to ask you.

Or you might say that there is title and there is an easement, and these are separate and that you can in fact use the word “own” because this word doesn’t include the existence of easements?

Then I would say ok – but what if someone has a negative predial easement on your hard drive that prevents you from running Linux on it? Can you be sure one doesn’t exist? Can someone enter your house tomorrow and say that they sold that particular physical hard drive on the condition that it only be used with Windows and remove it from your home? You were defrauded therefore by the person from whom you bought it who did not, in fact, have the authority to sell it to you without this condition and take the hard-drive from you – is this possible?

It seems clear to me that this is absurd, that a division of labour society cannot operate like this and that there is some difference between land and CDs/hard-drives.

I’m asking what this is? Are there different rules for land and hard-drives and, if so, why?

(The reason I’m asking is that Kinsella and Peter say there is no relevant difference between them – there is scarce and non-scarce and that’s that. I don’t think this makes much sense.)

Peter Surda June 23, 2011 at 9:52 am

Kid Salami,

I actually disagree with sweatervest.

If I violate someone’s rights, or trigger a condition in a contract I agreed upon, that might well result in me losing rights in stuff that I own. But there does not need to be a causal relationship between the objects these situations refer to. If I break someone’s window, that might result in me having to part with my money, although the money is unrelated to the window breaking. There are only two relevant facts:
- the act of breaking the window constituted either a violation of someone’s rights, or a fulfilment of a condition in a conditional transfer of title
- the “compensation” refers to the “violator’s” property, i.e. he either must own it, or if it’s a service rather than a good, he must be legally capable of performing it

It is very crucial that we understand that there is no requirement for a causal relationship between the the objects (the trigger and the compensation). This eliminates the faulty reasoning (e.g. by Wildberry) that the compensation is somehow derived from the trigger. However, none of this affects property of someone who is not involved in any of the actions. This is also crucial.

If I, for example, copy a CD I agreed not to copy onto my harddrive, that might well result in me losing the ownership of the harddrive. But if I copy it onto a third parties’ harddrive, the third party cannot not lose ownership of the harddrive (assuming the third party is not involved otherwise). That would be theft.

Kid Salami June 23, 2011 at 11:11 am

sweatervest

“Kid was wondering if IP could be established through contracts, and I only aimed to explain that no, at least not IP as it is commonly understood.”

I’m not asking you questions because I think or want that IP be “established through contracts”, I’m asking you them because I don’t think you can answer them without contradicting yourself.

Peter

I understand you don’t necessarily agree with sweatervest, I didn’t mean to suggest anyone agreed with anyone else if that’s how it came out. And I don’t see how you’re answering the question I put to him, if that was an attempt to do this. My question didn’t involve “copying” the contents of a CD but involved only physical property (land and hard-drives) and when aggression is justified based on their use.

Wildberry June 23, 2011 at 11:14 am

@Peter Surda June 23, 2011 at 9:52 am
Naturally, you miss the entire point of Kid’s question. There is no easement or servitude issue in your broken window example.

If I violate someone’s rights, or trigger a condition in a contract I agreed upon, that might well result in me losing rights in stuff that I own.

What is being raised is a property rights issue. Real property rights can be conditioned by the creation of an easement and/or servitude. Can other property be so modified? Can transfer of title be conditioned by an operation of law which limits ownership rights in the transferred property?

Don’t turn this into a standard trespass problem. Not on is asking you about that.

It is very crucial that we understand that there is no requirement for a causal relationship between the the objects (the trigger and the compensation).

It is crucial that you understand the question before you try to answer it.

This eliminates the faulty reasoning (e.g. by Wildberry) that the compensation is somehow derived from the trigger. However, none of this affects property of someone who is not involved in any of the actions. This is also crucial.

I have no idea what you are talking about. The only thing I can imagine is that you are referring to the discussion about conditions precedent in contract theory, where Kinsella used the example of “I pay you if it rains” and no one owns the rain. I have never claimed that it is necessary to own the condition that triggers the provision of a contract that depends on the occurrence or non-occurrence of an event. So even in your criticism, you are wrong and don’t understand what is being said. You are batting 0 for 2.

If I, for example, copy a CD I agreed not to copy onto my harddrive, that might well result in me losing the ownership of the harddrive. But if I copy it onto a third parties’ harddrive, the third party cannot not lose ownership of the harddrive (assuming the third party is not involved otherwise). That would be theft.

In your world, (or on Planet Surda, as Nate-m might say) where property rights can only exist by operation of contracts or for “physical” goods, even what you say may or may not be true, depending on other facts.

However, if property rights are violated, they are effective against everyone, regardless of whether they were a party to some prior agreement. That is the way property rights work, and why they are called property rights, not contract liabilities or something else.

Keeping you on track is a full time job. Fortunately I already have a job.

Peter Surda June 23, 2011 at 12:51 pm

Wildberry,

as usually, you completely missed the point of my post and instead start to confuse everyone. It did not deal with physical property or IP or easements, rather it dealt with the system of property rights in general, logic and explaining of faulty reasoning, of which you are a prime perpetrator.

Furthermore, you say this:

I have never claimed that it is necessary to own the condition that triggers the provision of a contract that depends on the occurrence or non-occurrence of an event.

You multiple times said in the past that a right to forbid copying of a work (e.g. book) is a derivative right of the ownership of the work. So, yet again, proof that you are either stupid or fraud.

Kid Salami,

unfortunately, you missed the point too. If you want, you can interpret an easement as a third type in addition to the conditional transfer and property rights violation (you can of course abstract them to just one, property rights in violation as such). It does not change anything I said. You can also add IP into the mix if you want. The point is that no matter how you define property rights, some actions would constitute a violation thereof. Easements merely rearrange who determines which actions are violations of property rights and which are not. So, here I agree with you and disagree with sweatervest.

But if person A causes a violation of property rights of person B, that does not result in property of person C, who was not involved in the act, being transferred to B. That would be theft. I’m not saying that you’re claiming this, I’m just saying that this applies to easements too.

Kid Salami June 23, 2011 at 2:49 pm

Peter – you just rephrased the situation using your terms and your frame of reference. I think it is pretty obvious that that is only going over old ground. I think my way is better. Won’t you tackle the very precise question i asked?

Peter Surda June 23, 2011 at 6:44 pm

Kid Salami,

I’m sorry but I can’t be of much help. You’re asking normative questions and I’m not really interested in those.

Kid Salami June 24, 2011 at 4:21 am

Peter

Normative:
“In philosophy, normative statements affirm how things should or ought to be, how to value them, which things are good or bad, which actions are right or wrong. Normative is usually contrasted with positive (i.e. descriptive, explanatory, or constative) when describing types of theories, beliefs, or propositions. Positive statements are factual statements that attempt to describe reality.”

Normative question? Nonsense – you can’t answer without contradicting yourself.

You certainly were happy to dsicuss it a week or two ago when you said this (amongst other things) of the difference between movable and immovable property

“Well, both can be possessed (or occupied), and be left unattended. From the point of view of a primitive society, there might be a difference, but when you have drills, dynamite and trucks there isn’t really much.”

http://blog.mises.org/16855/state-or-private-law-society/#comment-780243

So I think it is pretty clear why you won’t pursue this.

Peter Surda June 24, 2011 at 5:07 am

Kid Salami,

maybe then I just misunderstood the question. Can you rephrase it please?

Peter Surda June 24, 2011 at 5:45 am

Kid Salami,

let me try again. Are you asking if there is a difference between easements and IP? I thought I already answered that: IP requires that the immaterial can be a carrier of rights. If you want to interpret IP analogically to easements, you would need to assume that rights “propagate” through causality. If you assume that a harddrive can be property and agree with the concept of easements, then it is possible to obtain a harddrive with a pre-existing easement. If you want to do the same thing with IP, you already need to assume that the immaterial (causality) can carry rights, because otherwise the “easement” would need to apply to all existing matter and energy. So this does not really solve anything.

sweatervest June 24, 2011 at 2:14 pm

“sweatervest – you’re just transmitting and not making the effort to understand the point I’m making.”

Why don’t you stop assuming what’s going on in my head. Maybe you’re having a hard time expressing the point you are trying to make.

“I’ve heard this a million times. You are saying that because you “own” the hard-drive, you can do what you like with it and any restriction on this would be aggression, yes?”

Why do you put “own” in quotations? Are you unfamiliar with the concept of ownership?

“Let’s apply this to land. When I am sold land, I can do what I like with it right? Seemingly yes – except when it is the servient estate of an easement. If I buy this land and am not told about the easement, then I have clearly been defrauded and I have a claim against the seller. But in my scenario the seller is long gone. It is the dominant estate owner – a person with whom I have NO agreement or contract – that is forcing me not to use it for commercial purposes.”

That is because he is the actual owner of the property. This is no different than the IP case. You are seeing a “difference” that does not exist. The dominant estate owner is the owner and all uses of that land are at his discretion. Likewise, I am the owner of my hard drive and all uses of it are at my discretion? Where is the difference?

“You might say that in the case of an easement like this then I do not “own” the land outright, as I suggested as an option earlier. I would say that this is an answer at least but then would say that the entire concept of ownership then becomes meaningless and so would have other questions to ask you.”

What in the world are you talking about? You cannot sell someone something you don’t own, and that undermines property in general? Where did that come from? I am renting a house right now. I cannot sell it to someone else. What is so confusing about that?

“Or you might say that there is title and there is an easement, and these are separate and that you can in fact use the word “own” because this word doesn’t include the existence of easements?”

You are needlessly convoluting what is otherwise a very simple situation. There is an owner of the land. He grants conditional use through a contract to a second party. The second party is only a conditional user of the land, not an owner. Thus he cannot sell the property. When a third party thinks he has bought the property from the second party he has been defrauded and has bought nothing. He has no rights to that land because the owner did not sell it to him or contract with him. It’s not that complicated. Easements are transfers of property rights through contracts. Nothing I said contradicts that.

“Then I would say ok – but what if someone has a negative predial easement on your hard drive that prevents you from running Linux on it? Can you be sure one doesn’t exist?”

Yes!! I bought my hard drive. I am the owner. I did not contract with the vendor to conditionally use it. He transferred the ownership to me. I never signed a contract that involves easements. Can I be sure I did not sign such a contract? Of course!

“Can someone enter your house tomorrow and say that they sold that particular physical hard drive on the condition that it only be used with Windows and remove it from your home? You were defrauded therefore by the person from whom you bought it who did not, in fact, have the authority to sell it to you without this condition and take the hard-drive from you – is this possible?”

If the vendor does not own the hard drive himself and is licensing it from someone else then he cannot sell it to me and I have been defrauded. This is just like if someone sells me a Rolex they stole and I have to give it back. But that has nothing to do with IP. I can tell what your argumentative strategy is, which is to send me down rabbit holes that have nothing to do with the actual problem. This is very off-topic by this point. I see no reason why anyone would conditionally license a hard drive and that’s never happened from what I know. Either way it has nothing to do with IP. I don’t know anyone that tries to sell hard drives they don’t own but simply licensed for certain uses. And if they do, then of course they should be able to get them back upon breach of that contract.

“It seems clear to me that this is absurd, that a division of labour society cannot operate like this and that there is some difference between land and CDs/hard-drives.”

You’ve really twisted what I have said, so I’m not sure what to say by this point. Either way, even a piece of land can be a medium of expression. Some people make artwork out of their shrubbery. What’s the difference?

“I’m asking what this is? Are there different rules for land and hard-drives and, if so, why?”

Wait? You think I’m saying there is a difference? If so you totally misunderstand my position.

“The reason I’m asking is that Kinsella and Peter say there is no relevant difference between them – there is scarce and non-scarce and that’s that. I don’t think this makes much sense.”

What doesn’t make sense about scarce verses non-scarce? What is so hard to understand about how when you take physical property the owner is missing something, and when you copy a creative work no one is missing anything?

Finally Kid, you ignored the most important part of my response to you:

Are you telling me that if I buy a stolen Rolex and use it to make adjustments to the water flow in my sink, then the rightful owner of the Rolex is justified in not just taking his Rolex back but undoing all the improvements I made to my sink (which I did not steal) as well?

sweatervest June 24, 2011 at 2:25 pm

“I actually disagree with sweatervest.

If I violate someone’s rights, or trigger a condition in a contract I agreed upon, that might well result in me losing rights in stuff that I own.”

That’s not what I was trying to say. If I break something of yours I can’t return the good to you, I would have to pay to reimburse you out of my own pocket. But reimbursement for damage I caused to property has nothing to do with undoing all the improvements I made to my property with stolen property. If by doing so I did not damage the stolen property, then justice is served by the stolen property being returned (and perhaps some additional reimbursement for the trouble caused). I only lose ownership of my own property because that is necessary to reimburse the damage I caused to someone else’s property.

“But there does not need to be a causal relationship between the objects these situations refer to. If I break someone’s window, that might result in me having to part with my money, although the money is unrelated to the window breaking. There are only two relevant facts:
- the act of breaking the window constituted either a violation of someone’s rights, or a fulfilment of a condition in a conditional transfer of title
- the “compensation” refers to the “violator’s” property, i.e. he either must own it, or if it’s a service rather than a good, he must be legally capable of performing it”

We seem to be in agreement, actually. I’m not sure if I entirely grasp your position here, but you have yet to state anything I strongly disagree with.

“It is very crucial that we understand that there is no requirement for a causal relationship between the the objects (the trigger and the compensation). This eliminates the faulty reasoning (e.g. by Wildberry) that the compensation is somehow derived from the trigger. However, none of this affects property of someone who is not involved in any of the actions. This is also crucial.”

Again I agree with this. The crucial part seems to be that even if the contract violator loses a right to his hard drive by copying the CD he is not supposed onto the hard drive (I don’t see why he would but I’ll accept that for the sake of argument) the person who finds this copy and copies it himself has no reason to give up his property rights. He definitely did not agree to do anything.

“If I, for example, copy a CD I agreed not to copy onto my harddrive, that might well result in me losing the ownership of the harddrive. But if I copy it onto a third parties’ harddrive, the third party cannot not lose ownership of the harddrive (assuming the third party is not involved otherwise). That would be theft.”

Yes I agree with this as well, except I would go further to claim that there is no reason for you to lose ownership of your harddrive. Maybe you would. For example, maybe when you copied the CD in your old wobbly optical drive the CD got destroyed as soon as the copy was made, and you happen to be so poor that you have no money to your name and the only thing you have of value to your name is your computer. Then, perhaps, as restitution for the CD you destroyed and cannot return, you have to give up your computer. But the simple fact that the copy on the hard drive was made through breach of contract does not imply that one would have to give up the hard drive as restitution. In fact, I think that if the CD can be returned in its original condition and you have money to pay for the legal processes resulting from you breaching the contract, then that is all you are bound to do.

I have a couple of similar situations not involving IP that I think illustrate what I am saying. If I steal a wrench from you and use it to fix up my car then sure I would need to give you your wrench back and also pay for any of the legal processes involved (which, if I am poor enough, may involve me giving you my car or parts of it), but I don’t think you reserve a right to undo all the ways I changed my property with your stolen property. That would just be spiteful and have nothing to do with serving retributive justice as far as I see it.

sweatervest June 24, 2011 at 2:46 pm

“Naturally, you miss the entire point of Kid’s question. There is no easement or servitude issue in your broken window example.”

I think both you and Kid misunderstand easements as being something other than terms in a contract binding people that signed the contract. Kid’s example of the third party being forbidden to use land has *nothing* to do with easements. The easements bound the contract signer, not the third party. The third party simply never bought the land and therefore has no rights to use it at all. Easements do not play into that at all.

“What is being raised is a property rights issue.”

That’s what you are raising. Kid was talking about transferring rights through contracts, not what those rights are to begin with. You are starting to muddle those two very different things yet again.

“Real property rights can be conditioned by the creation of an easement and/or servitude.”

No. This is a complete misunderstanding of what easements are. Easements are terms in a contract and no contracts condition property rights, they allow conditional use of property by those that do not have the right to use. It’s no different than me saying, “yeah you can crash here for a couple of days”. No property rights are created or destroyed, I just exercise my ownership rights over my house by allowing someone to use my house on my terms. Allowing others to conditionally use your property is implied by having property rights. Contracts do not create or destroy or even transfer property rights. They only spell out terms of conditional use. The rightful owners remain who they are, which is why breach of contract is tantamount to theft.

“Can other property be so modified? Can transfer of title be conditioned by an operation of law which limits ownership rights in the transferred property?”

No this is a misunderstanding of what contracts do. Contracts rely on property rights, not the other way around. Contracts do not limit rights. They stipulate conditional use, which is implied in the rights that exist no matter what.

“Don’t turn this into a standard trespass problem. Not on is asking you about that.”

It is always a trespass problem. Breach of contract is a trespass. Property violations are trespasses.

“I have no idea what you are talking about. The only thing I can imagine is that you are referring to the discussion about conditions precedent in contract theory, where Kinsella used the example of “I pay you if it rains” and no one owns the rain.”

Such a contract has nothing to do with ownership of the rain, it has to do with ownership of the money used as payment. Rain is the condition, not the property.

“I have never claimed that it is necessary to own the condition that triggers the provision of a contract that depends on the occurrence or non-occurrence of an event. So even in your criticism, you are wrong and don’t understand what is being said. You are batting 0 for 2.”

That was not Peter’s point, and to the extent I can speak for him it seems like he was talking about you claiming that, for example, the copy existing on the hard drive is causally tied to breaching the contract concerning use of the original copy, and you claiming this counts as property claim.

If I, for example, copy a CD I agreed not to copy onto my harddrive, that might well result in me losing the ownership of the harddrive. But if I copy it onto a third parties’ harddrive, the third party cannot not lose ownership of the harddrive (assuming the third party is not involved otherwise). That would be theft.

“In your world, (or on Planet Surda, as Nate-m might say) where property rights can only exist by operation of contracts”

Where in the world did you get that from? When did anyone ever say (other than you, who implies it over and over) that contracts create property rights?

“or for “physical” goods, even what you say may or may not be true, depending on other facts.”

We live in a physical world. Goods are physical. That is a very silly thing to say. Can you own love? What about blue? Can you exclude the use of happiness? There is good reason why property rights boundaries must be physical. It is the physical world in which we all *coexist*. Your spiritual, intellectual, value-based world is yours and yours alone. I have mine. Peter has his. Etc. Property is about interaction between different actors, and is therefore about the thing in which we coexist, which is physical reality, not the mental realms that only exist for a particular person.

Explain this to me: if you are so critical of physicality being a criterion of ownership then why is it that every single case of retribution, *even* for IP violations, is in *physical* goods? Why does a violator of IP not simply need to give up some of his IP? Why does the settlement always involve the IP violator giving up his *physical* property as retribution?

“However, if property rights are violated, they are effective against everyone, regardless of whether they were a party to some prior agreement. That is the way property rights work, and why they are called property rights, not contract liabilities or something else.”

You are almost quoting me verbatim here. Who here suggested that property rights come from contracts? The whole point of my entire argument is that they don’t!

“Keeping you on track is a full time job. Fortunately I already have a job.”

Clever one-liners are a rhetorical distraction from logical arguments.

sweatervest June 24, 2011 at 2:59 pm

“Peter – you just rephrased the situation using your terms and your frame of reference. I think it is pretty obvious that that is only going over old ground. I think my way is better. Won’t you tackle the very precise question i asked?”

Frankly I cannot identify a “precise” question anywhere, and I’m also suspicious of you thinking what you are doing here is “better”. You have succeeded in diverging the debate into something that is not the actual topic of debate. It seems as though in a forum about the soundness of IP you want to talk about anything except for IP.

Your tactic seems to be discussing something completely different, then carrying the conclusions of that discussion over into IP and calling us “self-contradictory” because the conclusions don’t apply everywhere. At most you simply establish that there is no analogy between land/easements and intellectual property. Easements are terms in contracts. IP is a supposed property right.

You have found no self-contradiction at all. The easements thing has nothing to do with third parties being bound by terms of a contract. The easements play no role in the dominant estate owner excluding use of his property by those with whom he never made any agreements. They are utterly irrelevant and I’m not sure what you think you have exposed by detailing such a scenario. I have a hard time seeing what the connection is, how anything concluded about that scenario means anything for IP. You’re just constructing what seems to be a purposefully convoluted scenario in which a person forbids a stranger from using his property. The whole discussion about the fraudulent sale is, as far as I can tell, superfluous data that only makes the problem seem more confusing than it really is.

sweatervest June 24, 2011 at 3:04 pm

“Are you asking if there is a difference between easements and IP”

He’s trying to present easements as an example of third parties being bound to terms of a contract they never signed, and that is obviously a misrepresentation and convolution of the presented scenario. Easements have *nothing* to do with the third party being restricted from using the property. He said the third party is prevented from building a factory on the land as if he wouldn’t be prevented from doing anything he else on that land. He does not own the property, and that he was defrauded into thinking he does is irrelevant. Contracts do not bind third parties and this easement scenario is no contradiction to that. That’s just an example of an owner of property exercising his right to exclude.

Kid Salami June 25, 2011 at 3:13 pm

Peter

“let me try again. Are you asking if there is a difference between easements and IP?”

That’s a very general question, i didn’t ask that. I built up the scenario again step by step and finished the post with the question:

It seems clear to me that this is absurd, that a division of labour society cannot operate like this and that there is some difference between land and CDs/hard-drives.

I’m asking what this is? Are there different rules for land and hard-drives and, if so, why?

It’s hard to see how I can be any clearer.

*********************************

sweatervest

Why don’t you stop assuming what’s going on in my head. Maybe you’re having a hard time expressing the point you are trying to make.

Terribly sorry.

Why do you put “own” in quotations? Are you unfamiliar with the concept of ownership?

Hmm, not a good start.

That is because he is the actual owner of the property….

This is not going well.

What in the world are you talking about? You cannot sell someone something you don’t own, and that undermines property in general? Where did that come from? I am renting a house right now. I cannot sell it to someone else. What is so confusing about that?

Discussing this with you is pointless. You do not and will not understand the point I’m making and I believe I’ve made myself sufficiently clear. if you want to rant below about how I’m dodging you or some other crap, please feel free.

If the vendor does not own the hard drive himself and is licensing it from someone else then he cannot sell it to me and I have been defrauded. This is just like if someone sells me a Rolex they stole and I have to give it back. But that has nothing to do with IP.

Kinsella is not exactly my biggest fan, yet even he just wrote a post saying that one way of interpreting IP is as a negative personal nonapparent servitude. He feels this is consistent with his position – this may or may not be the case, but irregardless your refusal/inability to see the point i’m making means you disagree with him as well. Maybe you should reconsider your position.

I see no reason why anyone would conditionally license a hard drive and that’s never happened from what I know. Either way it has nothing to do with IP. I don’t know anyone that tries to sell hard drives they don’t own but simply licensed for certain uses. And if they do, then of course they should be able to get them back upon breach of that contract.

You just assumed away the whole issue.

Wait? You think I’m saying there is a difference? If so you totally misunderstand my position.”

So there’s no difference then, property rights wise? Kinsella talks of different rules for moveable property and immovable property in his post. You disagree with him?

What doesn’t make sense about scarce verses non-scarce? What is so hard to understand about how when you take physical property the owner is missing something, and when you copy a creative work no one is missing anything?

I don’t see this as the answer to everything like you do i’m afraid. And if you’d troubled to understand me, you’d know why.

Are you telling me that if I buy a stolen Rolex and use it to make adjustments to the water flow in my sink, then the rightful owner of the Rolex is justified in not just taking his Rolex back but undoing all the improvements I made to my sink (which I did not steal) as well?

No. That has nothing to do with what I’m saying.

Kid Salami June 25, 2011 at 7:30 pm

sweatervest – i just realised there were more replies below. And, finally, there is something we can agree on.

I have a hard time seeing what the connection is, how anything concluded about that scenario means anything for IP.

That is correct, you are having a hard time seeing what the connection is.

Kinsella opens his most recent post with the words:

It occurred to me the other day that the best way to classify the legal nature of intellectual property rights such as patent and copyright is the civil law doctrine of negative servitudes.

and continues along these lines.

So, let’s assume I’m an idiot and that I’ve made an awful job explaining that there is any merit in making a connection between easements and IP. Let’s say I give in and say that Kinsella’s elucidation of a connection is better (which is probably true, I haven’t properly read it yet though so don’t hold me to this). It could be different to the point I was making of course so, to clarify, maybe you could tell me:

do you agree with the connection Kinsella makes between IP and easements?

From your words here:

At most you simply establish that there is no analogy between land/easements and intellectual property. Easements are terms in contracts. IP is a supposed property right.

You have found no self-contradiction at all. The easements thing has nothing to do with third parties being bound by terms of a contract. The easements play no role in the dominant estate owner excluding use of his property by those with whom he never made any agreements. They are utterly irrelevant and I’m not sure what you think you have exposed by detailing such a scenario. I have a hard time seeing what the connection is, how anything concluded about that scenario means anything for IP.

It seems that you cannot agree with him based on these words – they are pretty clear.

So, if you clarify this question first, this will help. If you don’t agree with him also then fine. If you do agree with Kinsella, but still don’t agree with me, then i can point out where we might differ which might highlight our difference.

But, let’s face it, the truth is that there is a connection to be made, you just won’t/can’t see it.

And please don’t weasel out of this by answering some other question. You said very clearly

I have a hard time seeing what the connection is, how anything concluded about that scenario means anything for IP.

And I suggest that Kinsella has made a post contradicting your claim. So, please tell us if you agree or not?

Kid Salami June 25, 2011 at 7:36 pm

I ended the post with

It seems clear to me that this is absurd, that a division of labour society cannot operate like this and that there is some difference between land and CDs/hard-drives.

I’m asking what this is? Are there different rules for land and hard-drives and, if so, why?

Yet you say

Frankly I cannot identify a “precise” question anywhere

Hard to know what else i can do really. Funny how you all get reading comprehension failure at the same time.

Peter Surda June 26, 2011 at 4:51 am

Kid Salami,

It’s hard to see how I can be any clearer.

Well, it’s not clear to me from the post at all, but after the exchanges I think I’m starting to get it.

You’re saying that people can buy a good that has an easement attached without knowledge of the easement, and therefore this presents a way of binding third parties. As sweaterverst pointed out, the implication is false. The legal conclusions is probably that the sale is invalid.

Kid Salami June 26, 2011 at 1:13 pm

“The legal conclusions is probably that the sale is invalid.”

Is this meant to be something i overlooked which stops me in my tracks? Erm, it is in fact a step in the scenario i described. I said:

If I buy this land and am not told about the easement, then I have clearly been defrauded and I have a claim against the seller.

So if by “invalid” you mean the seller acted fraudulently, then we agree – yes, it is invalid. The important part is what happens in response to this “invalid” act – who “pays the price” in the two cases?

Ken June 19, 2011 at 8:42 am

Stallman’s solution sounds just like the “non-canvassed” distribution of radio royalties I used to read about back in the ’80s. Basically (if memory serves), college radio stations would submit their logs and royalty payments to the publishing bodies just like commercial stations. The publishers would throw the logs in the trash and disburse the royalties based on airplay from “canvassed” (read: commercial) stations. The royalties submitted for playing Superchunk or Hüsker Dü or Art Blakey would go to Def Leppard and Springsteen and Madonna.

David C June 19, 2011 at 10:48 am

When it comes to information liberty, Stallman seems to get it. I find it sad that this never translated over to real world liberties, especially free market related ones. He would have been a good ally. One would think that his love for information liberty would have translated over. That it would have built an intellectual bridge that could get through to him on other issues.

Virginia Llorca June 19, 2011 at 12:00 pm

I guess if you bought something from Amazon, it might record your web address or whatyacallit, ip address, but you could go on a computer at Kinko’s and you can create an account with a fake name and password and ALWAYS set up a gmail or yahoo mail box that uses fake names and send the package to a P.O. box. If you are that paranoid. I thought we already determined some years back that the FBI has access to the records of what you check out at the library. And I am a person that doesn’t think the National Endowment for the Arts and that stuff should be supported by my taxes. Maybe the Forest Preserve, okay, but come on. Stop somewhere.

konst June 19, 2011 at 12:50 pm

Stallman is very good on software freedom but I think his proposals on how compensate artists must be based on his views on economics which are statist. Maybe if he was exposed to some Mises Academy courses or books/interviews he would see the errors of statist solutions. The voluntary contribution idea is a good one.

Jim P. June 19, 2011 at 5:24 pm

I’m a bit baffled by Stallman sometimes. I wonder if he really thinks through these schemes he comes up with. I’m amazed that somebody who has so ably demonstrated the ability of people to come together and handle common problems without the State (via the free market), has to ultimately reach to power to solve other problems, such as those related to IP.

In Stallman’s proposal, who is to determine the popularity of artists? And why should I pay taxes to support artists that I think are shit; doesn’t this force me to support music that I think is bad? And most strangely of all, if we are to download media only from an approved source (in order to meter who is most popular and thus most taxworthy), doesn’t that kind of invalidate his ebooks comments? If I share music with a friend, I do it privately. It doesn’t get counted by the feds for tax purposes. Does Stallman really mean to further empower the IRS?

The big question though, why didn’t Stallman come up with those basic objections before he spouted off on them – in writing, no less? Doesn’t it strike Stallman as maybe a little silly that our most wealthy and well-known musicians, already having millions of dollars, would then be receiving many millions more via tax redistribution? This made-up cube root nonsense isn’t needed at all, nor is another government redistribution scheme. Let people simply pay for what they want like they already are. He has no understanding of small-time (ie, “independent”) music whatsoever.

Perhaps he should stick to linux and stop trying to “save” the kicking/screaming world. He reminds me of Einstein – outstanding at what he does, but a bonehead on everything else. The results of this would be monstrous. It would just tie all art to politics, and would never even achieve its desired result. Such is statism.

Clayton June 19, 2011 at 6:27 pm

Stallman’s GPL is definitely not a libertarian license agreement. To begin with, it presupposes statist monopoly courts and its ultimate goal is to push statutory law into alignment with Stallman’s frankly Marxist views on IP. I develop open source projects of my own but I will never use a GPL or any code which is GPL’d. The “stealth Marxism” in the GPL is in its *requirement* that any program which uses a single line of GPL’d source code must publish the *entirety* of its own source code! That’s absurd. A commercial software developer has a perfectly legitimate interest in keeping his source code closed, if he likes, and what the hell should Stallman or any open source developer care if a commercial software developer enfolds open source code in his commercial product?

The BSD license and its derivatives are much more libertarian and consistent with private property. In my view, once you *publish* (make public) a piece of source code, you have ceded all rights to control its copy. If someone uses your published source code for commercial purposes, that’s their business and you have no right dictating to them that they must, in turn, publish the entire corpus of their source code which happens to use yours, whatever “use” is defined to mean.

Stallman is a fanatic and the GNU project has been stagnant for decades. I won’t hold my breath but a GPLv4 == BSD would sure be nice. Of course, even if he realized his folly, his fanatical followers would never permit him to correct it.

nate-m June 19, 2011 at 7:15 pm

Stallman’s GPL is definitely not a libertarian license agreement.

The license is a copyright license, full stop. There is nothing libertarian about copyright.

The license can still serve a important function in the current legal climate though.

Daniel June 19, 2011 at 9:14 pm

You’re right about Stallman

He’s a communist who, if he had his way, would have everyone have their source code in the open and those that didn’t agree to that would have it taken by force to be put in the open.

I don’t agree with patents or copyrights or DRM, but I sure as hell don’t agree with Stallman, nor do I see him as an ally, even a potential one.

nate-m June 20, 2011 at 12:00 am

The Linux kernel project is a successful one that makes a great deal of people a great deal of money. They use the GPL license to great success and the majority of them don’t align with Stallman’s politics. (which is minor besides the central focus in his life)

Just because Stallman has bad ideas does not mean all his ideas are bad, nor does it make the GPL a bad license to use.

The only really better solution is to just get rid of patents and copyrights, but that doesn’t seem to be happening any time soon.

Wildberry June 20, 2011 at 1:32 pm

@Daniel June 19, 2011 at 9:14 pm

He’s a communist who, if he had his way, would have everyone have their source code in the open…

This sounds very similar to the anti-IP position. According to Kinsella, authors can either keep their works to themselves, or disclose it freely, much like the objectives of FOSS, especially GPL.

Is the distinction between Stallman and Kinsella the second part only, force to put undisclosed works in the open?

If so, this seems a subtle difference. While, according to you Stallman would enlist the state to seek out software to place in the open, Kinsella would merely prohibit property interests from being recognized in IP, thus destroying any economic incentive for producing it, for the most part.

Under either system, no one in their right minds were going to invest much in producing intellectual works, literature or software, if they were only going to find that under Stallman, the cops could seize their work, and under Kinsella, you can make it but not sell it. Either way, private property in the means of production is destroyed. They only differ in their means of doing so.

sweatervest June 20, 2011 at 2:57 pm

“This sounds very similar to the anti-IP position. According to Kinsella, authors can either keep their works to themselves, or disclose it freely, much like the objectives of FOSS, especially GPL.”

Of course that is ignoring the one thing about the GPL that makes it communistic, which is requiring that if any piece of code is released, the entire code must be released open-sourced. Please tell me which of the anti-IP arguers here ever suggested forcing such a predicament upon software designers.

“If so, this seems a subtle difference”

Let’s ask some software designers how subtle they think that is.

“Kinsella would merely prohibit property interests from being recognized in IP”

Ahh, so now we have abandoned property rights and will speak of property “interests”. Yeah, and why prohibit property interests from being recognized in the slave trade?

“thus destroying any economic incentive for producing it, for the most part”

Except that is an insane load of BS that has never been backed up with anything. According to this reasoning if GM had a monopoly to produce cars, revoking it would lead to an end or even a serious reduction in the production of cars. Also, getting rid of minimum wage would destroy the economic incentive to work low-paying jobs, and they would disappear too, apparently. How in the world does making creative work potentially illegal and much harder to do professionally result in more creative work?

“Under either system, no one in their right minds were going to invest much in producing intellectual works, literature or software”

You would know, being a producer of intellectual works. Of course you refuse to listen to me, someone that has been producing music and software for more than a decade.

“under Kinsella, you can make it but not sell it”

No, without IP you could not sell copies of your creative work at a hugely inflated price that does not at all reflect the cost of distribution, which is what you would be doing. Selling copies is distribution, not creative work, and happens after the creative work is already done. There is nothing stopping people from selling their creative talents on the market any more than people selling any other kind of labor on the market. You would get paid to do the creative work, not paid after the creative work is done to do something that people can do for free anyways, which is distribute copies of your work.

“Either way, private property in the means of production is destroyed”

Haha and what means of production would that be!? That is absurd nonsense. The means of creative production are a person’s body, musical instruments, a pen, etc. Who is contesting private ownership of those, except for you, who is claiming that no one privately owns their bodies so long as their vocal chords can reproduce a copyrighted melody?

Wildberry June 20, 2011 at 10:59 am

Stephan,

so there would probably not be as much need for anonymity in book purchases, since there could be no legal penalty imposed for reading the “wrong” kind of books.

Gee, I have never been arrested or penalized, legally or any other way, for reading the “wrong” kind of books. What are you talking about? Is that what they do in Texas?

nate-m June 20, 2011 at 11:09 am

What are you talking about?

He would be talking about books whose creation violates copyright law, duh.

But I guess on Planet Wildberry that sort of stuff never happens.

Wildberry June 20, 2011 at 11:55 am

@ nate-m June 20, 2011 at 11:09 am

Are you sure? What does this have to do with anonymity? Sounds like a fear of Big Brother, you know, “We have IP because we have the State”.

What are YOU talking about? On Planet Wildberry, copyrights exists and can be violated. On Planet Kinsella that can’t happen, since there can be no rights to vioate.

What planet are you on?

nate-m June 20, 2011 at 12:24 pm

What planet are you on?

Earth.

Wildberry June 20, 2011 at 1:40 pm

That’s what I was afraid of…

nate-m June 20, 2011 at 1:44 pm

I know, but you shouldn’t worry to much. Earth isn’t quite as scary as you think it is.

Wildberry June 20, 2011 at 3:59 pm

No, no, you have it wrong. I’m quite happy with Earth, it is having to share it with scary co-inhabitants that I fear. :-)

sweatervest June 20, 2011 at 3:05 pm

“Sounds like a fear of Big Brother”

More ignorant stereotyping of people you don’t understand. Thank you for sharing. Yes we’re all wide awake at night with our shotguns out and loaded cus the gubment is after us. Whatever kind of cartoonish reality you have to believe to vindicate your nonsense position.

““We have IP because we have the State””

We do have IP because of the state. Draw whatever caricatures you want, IP is a creation of the state and has nothing to do with cooperation among individuals of a functional society. Rolling your eyes and calling us paranoid is not a counter-argument, although it is quite popular among intellectual dullards.

Stephan Kinsella June 20, 2011 at 12:22 pm

The concern about anonymity is obviously a concern that if things get bad enough the state can come snooping for your reading lists and find out who are the enemies of the state. I am sure the FBI even now keeps some such info on some people. The Texas coment is a ridiculous cheap shot.

Wildberry June 20, 2011 at 12:50 pm

Then I guess, despite Nate-m’s objection, I interpreted your comment correctly.

Well, I like Texans, generally, so what was cheap about it? You are worried about Big Brother snooping through your reading list, but have no similar concerns in Ancap/utopia.

Ihave never experienced anything like what you say you fear, have you?

sweatervest June 20, 2011 at 3:05 pm

“Ihave never experienced anything like what you say you fear, have you?”

Yeah, and you never lived through the Holocaust so it must have never happened.

sweatervest June 20, 2011 at 2:59 pm

Gee, I thought that if I downloaded a book online that is copyrighted and online illegally, I can get arrested for reading it. I thought that was, you know, what copyright is all about.

Wildberry June 20, 2011 at 11:50 am

Stephan,

Now it could be true that such a system would be better than copyright–copyright imposes a tax, too, but it is disguised and hidden.

What is the “copyright tax”? You mean like when I check into a hotel, I have to pay a “hotel tax” to use the room? Or when I buy a hot dog, I have to pay a “hot dog” tax?

To call a charge to use private property a “price” in one context and a “tax” in another is completely inaccurate and misleading. Taxation is a public function, “pricing” is a private function.

Taxes accrue to the state, while sale prices accrue to the seller of private property. To label the sale of copyrighted material as a system of taxation is just foolish rhetoric designed to support your “I hate the state” mantra.

Licensing is a title to permission to use private property, and like all property rights, are backed up by coercion. Your obsession with opposing coercion if employed by the state while accepting it if employed by PDA’s, is just transparent rhetoric that assumes your anti-state conclusion. It has little bearing or relevance to the debate on the legitimacy of the principles of IP protections, which is a property, ethics, legal, and economic policy issue regarding private, not public property transactions.

GPL, like all legal licensing schemes, is dependent upon the threat of coercion. One aspect of the license is the “viral” quality of making private contributions to source code subject to the GPL open license. This means that those who redistribute software with GPL content, are bound automatically by the GPL license. That obligation is enforceable by coercion, similar to copyright law.

I am not an expert in this area, but I understand that users and developers of software products have to take this viral feature into consideration when utilizing various FOSS software, and is one reason that Apache, for example, is often preferred. But it too is dependent upon the infrastructure of copyright enforcement, since it allows a developer to redistribute an Apache licensed core with copyrighted enhancements and other protectable code development.

In the end, the “taxation” scheme by Stallman appears on the surface to be similar to the ASCAP scheme for radio broadcast of recorded music. As to your comment, “Now it could be true that such a system would be better than copyright”, it appears to me that it is dependent upon the principle of copyrights, since it would have to first acknowledge property rights before it could require any form of payment upon use. How such a system could operate in the system of non-IP you advocate is a little hard to imagine. Care to elaborate?

Stephan Kinsella June 20, 2011 at 12:23 pm

The tax is the higher prices we pay for things because of copyright, of course.

Wildberry June 20, 2011 at 1:02 pm

@Stephan Kinsella June 20, 2011 at 12:23 pm

You seem to be inferring that without copyright, pieces for what is now the subject matter of copyrights would be lower.

Yet elsewhere you said that an author of a work has only two choices; 1) keep it secret or 2) disclose it with no expectations of property rights, neither of which is possible economically, as you have pointed out. (i.e. who in their right mind would pay $10 and accept liability in the millions?)

So, there would be, in your non-IP world, no way to ever economically exploit one’s intellectual works. The only viable business model would be to sell one’s literary talent as labor.

I’m not going to call you a socialist, like some have. I am simply observing that this scenario has some striking similarities with the socialist model, don’t you agree?

sweatervest June 20, 2011 at 3:12 pm

“You seem to be inferring that without copyright, pieces for what is now the subject matter of copyrights would be lower.”

That is obviously the case.

“neither of which is possible economically, as you have pointed out. (i.e. who in their right mind would pay $10 and accept liability in the millions?)”

No, that’s covering one of them. He never suggested that number 2 is economically impossible.

“So, there would be, in your non-IP world, no way to ever economically exploit one’s intellectual works. The only viable business model would be to sell one’s literary talent as labor.”

Yeah, what’s wrong with that model? It is, after all, the exact same model that is in place everywhere else in a capitalist society. People sell their talented labor, i.e. I know how to use MS Office so I sell labor using that knowledge to get a job.

“I’m not going to call you a socialist, like some have”

Right. You’re not gonna call him a socialist, you’re just gonna call him a socialist.

“I am simply observing that this scenario has some striking similarities with the socialist model, don’t you agree?”

Haha agree on what? You didn’t illuminate what those “striking” similarities are at all? And no there are no similarities what-so-ever. In socialism people are told where to work, they don’t sell anything. What does selling your labor (which requires that you be the private owner of your body) have to do with government ownership of the means of production? What means of production would be owned by the government as a result of people selling their creative labor rather than attempting to sell copies of their creative work?

Troy Camplin June 20, 2011 at 3:30 pm

I do like the idea of being able to donate to a favorite author. If places like Amazon wanted to provide that service, of course. I would welcome that — or even just a few sales — for my book Diaphysics. In leu of Amazon, though, one can always go to my blog and donate. ;-)

Virginia Llorca June 20, 2011 at 5:01 pm

@Wildberry. Amazon does have a publishing arm. Actually two I know of: Kindle Press and CreateSpace. Air gone from that balloon.

I cannot believe the level of sophistication on this blog that you are reduced to calling each other names. Incredible.

Jim P. June 20, 2011 at 6:17 pm

Every single IP post is like this. I think it’s odd too.

Wildberry June 20, 2011 at 6:24 pm

@ Virginia Llorca June 20, 2011 at 5:01 pm

OK, you got me, I think of Amazon of a book SELLER, but let me accept your correction that they also publish. May I presume then (I’m not going to research this ether) that they have some economic incentive for doing so? Can we also presume that they are doing so within the context if copyrights?

Now, can you explain to me, putting yourself in Amazon the publisher/seller position, what would happen to your business model if you suddenly found that there is no way to prevent the free distribution of your products?

On Planet Kinsella, you cannot enforce copyrights, you can’t enforce DMCA technology, etc. So why would you pay an author to publish his/her book if the first time it was downloaded, it became everyone’s property equally?

The objection I tried to raise here still stands. There is rampant speculation on how the market would be even stronger without IP, yet that IP doesn’t seem to prevent Amazon from making money selling (and publishing books).

If one is going to argue that without IP, companies would do X, then is it unreasonable to ask for an explanation of what that might be and how it works? Or is it enough to say, “Hey, look everyone will be fine!” and leave it at that?

If there is a way to make money without copyrights, people are free to do it today. They may distribute their own products however they wish. Some do. I’m sure for example, that some unknown authors are begging Amazon to just give their books away for free. Amazon probably does, if for nothing else, to increase the number of titles they have available.

Radio stations pay for content, but also limit the re-broadcast. What would they pay if they couldn’t limit re-broadcast?

I submit that abolishing IP will dissolve, for the most part, the economic incentive for producing intellectual products. I have yet to hear from anyone why, specifically, that is not true.

As you may know, Mises made the same observation in Human Action. I expect such strong opponents of IP would have a good answer.

Virginia Llorca June 21, 2011 at 12:25 pm

I don’t know if I will make it through this whole response. Excusable considering my reputation for one-liners precedes me. But they CANNOT prevent free distribution of their products, an ongoing problem they frequently address. Sites devoted to stripping DRM, people in China (for one example) that post anyone’s book and collect the purchase price until someone asks or tells them to take it down. The pirate edition is frequently up with the legitimate edition.Still, I believe Amazon collects at least a percentage of the funds even from pirates, just for letting them post on their site. Kindle publishing is free and the writer gets an attractive percentage of the sales. It is a whole new ball game and I am not into sports. And it is fact that many books are available from Kindle for free. So Amazon must get zilch for that. I believe the writer does it to establish a “brand”. For another example from my narrow realm of expertise, four of the top “bestsellers” on the romance list are available for free Kindle download.

I’ll let you know when mine are up. Then I’ll have more knowledge to share with you.

I am not arguing the taxable-ness of IP. It is a little too abstract for this mind.

Wildberry June 21, 2011 at 3:59 pm

@Virginia Llorca June 21, 2011 at 12:25 pm

But they CANNOT prevent free distribution of their products, an ongoing problem they frequently address.

This is the crux of the problem. Thos opposed to the principles of IP insist that Amazon does not and should not have a right to prevent free distribution of their products, yet somehow, in the absence of IP rights, they and the rest of us would be somehow better off.

If that were true, why wouldn’t Amazon stop trying to prevent this, since it is, according to some, better for them and for us. Copyrights doesn’t prevent them from giving their stuff away, right?

Out of curiosity, do you know what percentage of the publishing business is related to romance novels?

Virginia Llorca June 21, 2011 at 5:25 pm

There is an interesting website Smart Bitches Trashy Books. It is a fount of info. They have many links as you scroll through their posting history. I am sure the figures are in there somewhere. I do remember a pie chart or two. It is a pretty huge segment, and seems, to my personal observations, to be growing. I do believe the electronic publishing is helping their numbers. The thing is, I don’t write “Romance” per se. They have a very STRICT guidline about happy endings. I write fluff and it doesn’t always have a happy ending. But like I say it is a perceptive profile of the industry.
Wouldn’t it be interesting to hear some Amazon exec weigh in here with his ideas about Intellectual Property?

I am all thumbs and medicated so my post is up here twice. You don’t have to reply twice. You are welcome. Think nothing of it. Enjoy the discourse. No name calling, guys.

Virginia Llorca June 21, 2011 at 12:57 pm

I don’t know if I can make it through this whole response. Understandable since my reputation for one-liners precedes me. And I’ve already made this entry disappear twice. Amazon CANNOT prevent the free distribution of their published work, a situation they address frequently in various locations. There are MANY sites giving instructions for removing DRM and there are pirates (in China for one example) that repost books and collect proceeds until someone asks or tells them to take it down. Frequently the pirated edition is up at the same time as the legitimate edition. And one person can purchase a legitimate edition and freely distribute it (illegally) through email. I think that is where stripping DRM comes in.

Kindle publishing is free and the writer collects a healthy percentage of the sales, something like 75%. It is also a fact that there are many books available “for sale” for free. These are counted with cash sales. An example from my narrow field of expertise: four of the top ten “sellers” on the romance list are available for free. I believe authors do this to establish a “brand”. I will let you know when mine are up when I will have more knowledge to impart.

CreateSpace is subsidized publishing. I don’t know the royalty set up.

I am not arguing about the taxable-ness of IP. The concept of Intellectual Property borders on the abstract for me and I slept through my philosophy final.

Michael June 20, 2011 at 8:04 pm

Stephen,

If you want IP stupidity story of the day look no further:
http://www.news.com.au/business/caught-off-guard-by-a-name/story-e6frfm1i-1226078848687

‘Surf Life Saving Australia’ (SLSA) the dominant and heavily government funded (once was strictly volunteer funded) life saving governing body in Australia has trademarked the genericised terms “lifeguard”, “surf rescue”, “surf patrol”, “nipper” and the standardised colour nominated for flags at the beach.

These terms all have roots in cultural from decades ago and this leaves lifeguard unions, non SLSA governing bodies, lifeguards in private hotel pools, reality shows on lifeguards, sellers of merchandise and sponsors who use the colors in their CSR reports liable for claims.

Wildberry June 23, 2011 at 1:51 pm

@Peter Surda June 23, 2011 at 12:51 pm

as usually, you completely missed the point of my post and instead start to confuse everyone. It did not deal with physical property or IP or easements, rather it dealt with the system of property rights in general, logic and explaining of faulty reasoning, of which you are a prime perpetrator.

Of course, if you want to answer a question no one asked, that must mean you are only interested in talking to yourself, which hardly makes you an authority on other’s “faulty reasoning”.

I have never claimed that it is necessary to own the condition that triggers the provision of a contract that depends on the occurrence or non-occurrence of an event.

You multiple times said in the past that a right to forbid copying of a work (e.g. book) is a derivative right of the ownership of the work. So, yet again, proof that you are either stupid or fraud.

False dichotomy, but leaving that aside…

How you can connect these two thoughts is beyond me, but perhaps is indicative of how people think on Planet Surda. The first quote is the theory of executory rights of contract dependent upon the occurrence (or non-occurrence) of a condition precedent. I don’t think you understand this concept, so I won’t bother with it anymore here. The second is an analysis of when an act is aggression.

And just to blow your mind, I do say, and have said multiple times what you claim. The distinction between aggressive and defensive acts is dependent upon whether a right which is being defended actually exists. Defending a right you don’t have (i.e. copyrights, on Planet Surda) is aggression. Defending a right you have (copyrights on Planet Wildberry) is not aggression. Therefore, on PW, a right to forbid copying of a work is derived from the ownership in that work.

Did you learn anything?

Easements merely rearrange who determines which actions are violations of property rights and which are not. So, here I agree with you and disagree with sweatervest.

Yes, and the question is whether this “rearrangement” could apply to IP. That is one way to think about IP rights, as a servitude which limits your property rights in a property upon conveyance by the owner to you. It implies that property rights are bundled, and since property is freely alienable, these rights can be unbundled and transferred or held specifically as a condition of transfer. This is a feature of property rights, as illustrated by the example Kid Salami is using: easements and servitudes. Selling property and retaining mineral rights is a practical example of the issue Kid is raising.

But if person A causes a violation of property rights of person B, that does not result in property of person C, who was not involved in the act, being transferred to B. That would be theft. I’m not saying that you’re claiming this, I’m just saying that this applies to easements too.

If you think this is responsive to anything that is being said here, I would like to hear how. Party C, who has no connection to an event that transpires between A and B, has no liability to party B. Duh!

Naturally, party C would have to have some connection to the violation of B’s rights to have any liability to B. In addition, he would have to have KNOWN about it. What happens if C harms B but didn’t know he was doing it until after the event? Does B have a remedy? Against whom; A only; A and C; only C? Why?

Apply that to easements/servitudes, and then apply it to IP. Explain yourself. The river is rising, start swimming…

Wildberry June 23, 2011 at 1:52 pm

The edit feature is not working…?

Virginia Llorca June 23, 2011 at 5:12 pm

My “duplication” has been waiting moderation for days. At least it allows us to blather on.

Wildberry June 23, 2011 at 1:53 pm

@Peter Surda June 23, 2011 at 12:51 pm

as usually, you completely missed the point of my post and instead start to confuse everyone. It did not deal with physical property or IP or easements, rather it dealt with the system of property rights in general, logic and explaining of faulty reasoning, of which you are a prime perpetrator.

Of course, if you want to answer a question no one asked, that must mean you are only interested in talking to yourself, which hardly makes you an authority on other’s “faulty reasoning”.

I have never claimed that it is necessary to own the condition that triggers the provision of a contract that depends on the occurrence or non-occurrence of an event.

You multiple times said in the past that a right to forbid copying of a work (e.g. book) is a derivative right of the ownership of the work. So, yet again, proof that you are either stupid or fraud.

False dichotomy, but leaving that aside…

How you can connect these two thoughts is beyond me, but perhaps is indicative of how people think on Planet Surda. The first quote is the theory of executory rights of contract dependent upon the occurrence (or non-occurrence) of a condition precedent. I don’t think you understand this concept, so I won’t bother with it anymore here. The second is an analysis of when an act is aggression.

And just to blow your mind, I do say, and have said multiple times what you claim. The distinction between aggressive and defensive acts is dependent upon whether a right which is being defended actually exists. Defending a right you don’t have (i.e. copyrights, on Planet Surda) is aggression. Defending a right you have (copyrights on Planet Wildberry) is not aggression. Therefore, on PW, a right to forbid copying of a work is derived from the ownership in that work.

Did you learn anything?

Easements merely rearrange who determines which actions are violations of property rights and which are not. So, here I agree with you and disagree with sweatervest.

Yes, and the question is whether this “rearrangement” could apply to IP. That is one way to think about IP rights, as a servitude which limits your property rights in a property upon conveyance by the owner to you. It implies that property rights are bundled, and since property is freely alienable, these rights can be unbundled and transferred or held specifically as a condition of transfer. This is a feature of property rights, as illustrated by the example Kid Salami is using: easements and servitudes. Selling property and retaining mineral rights is a practical example of the issue Kid is raising.

But if person A causes a violation of property rights of person B, that does not result in property of person C, who was not involved in the act, being transferred to B. That would be theft. I’m not saying that you’re claiming this, I’m just saying that this applies to easements too.

If you think this is responsive to anything that is being said here, I would like to hear how. Party C, who has no connection to an event that transpires between A and B, has no liability to party B. Duh!

Naturally, party C would have to have some connection to the violation of B’s rights to have any liability to B. In addition, he would have to have KNOWN about it. What happens if C harms B but didn’t know he was doing it until after the event? Does B have a remedy? Against whom; A only; A and C; only C? Why?

Apply that to easements/servitudes, and then apply it to IP. Explain yourself. The river is rising, start swimming…

Peter Surda June 23, 2011 at 2:52 pm

Wildberry,

I already explained all the errors in your claims to you several times, only for you to ignore it. Now, months later, the conversations have not happened! You should sell that magic powder to people suffering from PTSD.

Wildberry June 23, 2011 at 4:20 pm

Blub, blub, blub, blub…you’re sinking and being carried down stream!

Anti-IP Libertarian June 23, 2011 at 4:25 pm

@Wildberry: Do not blame others if you do not understand sound arguments.

Wildberry June 23, 2011 at 5:03 pm

Check your assumptions; i.e. “sound arguments”.

Anti-IP Libertarian June 23, 2011 at 7:01 pm

Checking… Yes, Peters arguments are sound. In fact they are logical. So what’s your problem with them?

Anti-IP Libertarian June 23, 2011 at 7:03 pm

The problem with “information rights” is always the same: What about a third party getting some information by chance? What if A and B have a contract (NDA) on some information, but C who has no contract with A and B sees this information? How could C be bound? After libertarian theory he cannot just by seeing that information.

Anti-IP Libertarian June 23, 2011 at 7:08 pm

@Kid Salami:

Your analogy with easements on land does not work regarding IP: If a person buys some patch of land with an easement on it so be it. But how on earth should there be any easement-like thing on your own brain which is just an information-processing AND data storing unit? There is no easement to your brain. So therefore every information you get to know without having a contract with the information broker is yours freely to use as long as you adhere to the NAP.

Kid Salami June 25, 2011 at 7:11 pm

Anti-IP

“If a person buys some patch of land with an easement on it so be it”

Thanks, that cleared a few things up.

“But how on earth should there be any easement-like thing on your own brain which is just an information-processing AND data storing unit? There is no easement to your brain. So therefore every information you get to know without having a contract with the information broker is yours freely to use as long as you adhere to the NAP.”

Hmmm. I’m going to repeat the words of Schulman to you from that thread a while back

“You know, you could at least pretend some familiarity with what I’ve actually written instead of making a fool of yourself by always attacking absurdities that are no part of my arguments and aren’t implied by them, or derivable from them, in the slightest.”

They made me laugh at the time, as i had a working theory that you were either a robot using keyword searches to generate replies, or a plant from a pro-IP organisation making intentionally ridiculous “arguments” to weaken the anti-IP case. Your comment above confirms this, unless of course you can find any evidence whatsoever that you gave what i wrote more than a passing glance or that i said anything even remotely related to this preposterous gibberish.
.

Peter Surda June 29, 2011 at 8:20 am

Kid Salami,

I’ll answer here, the thread is too long to navigate easily.

So if by “invalid” you mean the seller acted fraudulently, then we agree – yes, it is invalid. The important part is what happens in response to this “invalid” act – who “pays the price” in the two cases?

Since the sale is invalid, the “buyer” never obtained the object in the first place. He is also not bound by a contract, since he never signed any. So the whole case should be treated as if the “sale” never happened.

Kid Salami June 29, 2011 at 4:16 pm

Answer me a question then please. Why does the word easement (and the associated vocab like dominant and servient estate) even exist? In your world they have no purpose.

According to you, I as the dominant estate agree terms with the servient estate that he is not to use his property for commercial purposes and that in the even of any sale I must retain this right. Either
- he owns the property, no probs as i ahve a contract with him
- he doesn’t own the property because he sold it with the terms of use as requested, no probs here as the new user was directed to me and he agreed also (or was free to refuse)
- he “sold” the property without declaring the user must agree the terms with me, so the sale was “invalid”, we act “as if the “sale” never happened” and he is back to being the owner again. i have a contract with him already, no probs as i still have a contract with him.

In each case, a “normal” contract will do perfectly fine. Can you confirm that you agree that easements have no purpose in your framework, or explain – precisely – what their purpose is?

Peter Surda June 30, 2011 at 4:19 am

Kid Salami,

Why does the word easement (and the associated vocab like dominant and servient estate) even exist?

Ask historians.

In your world they have no purpose.

Correct. I’m sort of a minimalist.

Can you confirm that you agree that easements have no purpose in your framework, or explain – precisely – what their purpose is?

I hereby confirm that according to me, they have no purpose, they are merely a specific instance of more generic concepts, i.e. property rights and contracts. I apologise if I hadn’t made this clear enough earlier.

Stephan Kinsella June 30, 2011 at 7:36 am

I agree that this is just an instance of a more general concept, but there is a reason legal concepts emerge over time, just as normal concepts emerge–to be able to identify conceptually and linguistically certain things having unique features. If A and B are neighbors and they negotiate a right of passage for A to cross over B’s property, and if this and similar arrangements (building restrictions, restrictive covenants, usufruct or other rights of use) become common and have distinct features, eventually a need for a word and concept for this type of arrangement arises.

Wildberry June 30, 2011 at 11:40 am

@Stephan Kinsella June 30, 2011 at 7:36 am

If A and B are neighbors and they negotiate a right of passage for A to cross over B’s property, and if this and similar arrangements (building restrictions, restrictive covenants, usufruct or other rights of use) become common and have distinct features, eventually a need for a word and concept for this type of arrangement arises.

I agree with this, and it comes pretty close to what I mean when I say “property is human device”.

An easement is a “type of arrangement” that affects the conveyance of land in a very specific way. One might say that this “arrangement” is a legal principle. The common law may evolve to secure this arrangement between affected parties, based on an array of facts that have occurred over time in a number of property disputes. Defensible methods of adjudicating these disputes becomes “precedent.”

This leads me to the conclusion that IP laws could evolve in a similar way; arrangements that people would otherwise make by contract get encoded into laws, which are then enforceable through common law.

Kid Salami June 30, 2011 at 8:32 am

http://lians.ca/documents/EasementsLicenses.pdf

“Accordingly, if A by licence, that is, by contract, permits B to pass and repass over A’s
land, and A subsequently sells the land to C, because C was not a party to the contract, C
may maintain an action in trespass against B and get an injunction stopping B from passing
over the land. The only remedy B has, in this situation, is an action in damages against A
for breach of contact.

However, if the grant by A is an easement, then B’s right to pass and repass over the
property in question burdens the title to the property and, as a result, the new owner, C,
takes a title which is subject to, or encumbered by, B’s right to pass and repass over the
property and, therefore, C cannot stop B from doing so.

It is immediately apparent that a right created by an easement is much more secure,
and therefore much more valuable, than a right created by a licence.”

Thoughts?

Wildberry June 30, 2011 at 12:45 pm

@Kid Salami June 30, 2011 at 8:32 am

I think the critical distinction you are making is said here, in the article you linked:

The difference between a license and easement is this: a license is a right in contract only, while an easement is not only a right in contract but also an interest in real property.

This is the crucial distinction between a contract, which requires privity, and a property interest, which does not. What can be established by contract can also become a property interest. This is why I have argued that under contracts law, IP can be recreated, but only to the extent that a contract creates a property interest. This is in fact what easements do. Parties agree to create a property interest, and from then on, that interest is a property interest that operates in law as property.

This is why I argue (and Mises said it first) property and (property interests) are a human device; they reflect agreements among cooperating humans (society) that operate in law to secure property rights. So property rights merely mean, in this context, the right to attach a specific type of agreement between (or by a single) land owner(s) to “burden” property with limited rights of “exclusive use and possession?

One more point of disagreement I have with Kinsella’s argument about easements creating co-ownership is that this is an incorrect statement of the law and how it operates.

“Private ownership” means exclusive use and possession, but also means title is “freely alienable”. That means the owner of property can also dispose of it as he pleases. If an owner attaches a burden limiting the rights of use of his property, and sells it with that condition, the buyer owns it to the extent of his rights under the burdened title. This title can be freely sold, rented, or retained, or additional burdens can be attached without the permission or “veto power” of any other parties.

Kinsella seems to say that when a seller sells with a burden, he and the buyer become co-owners, and as such the seller retains a right to “veto” the buyers actions. While you can contort the plain meaning of these words “co-ownership” and “veto” to describe the accurate operation, it is fraught with problems to describe it this way. He likes it, though, because it makes it easier to claim that IP violates the rights of private property by giving IP holders a “veto” power on the free use of ideas. I believe he recognizes this is true, but refuses to acknowledge it because it opens the door to exposing his other contradictions and equivocations.

The only parties that are relevant to the owner is a bonafide purchaser (BFP), and third party beneficiaries of the burden. In a case where the BFP is on notice of the burden, the acceptance of the burden is voluntary, because he can always choose not to accept the property (and the burden, which are one).

When the BFP does NOT have notice, a special problem arises in property law: what to do with the buyer and seller who made the deal. The bottom line is that the burden is honored and secured by operation of property law, but the damages are actionable under the theories of contract law: recission, money damages, equitable remedies (injunction or specific performance).

Note that the quote above does not say just “property interest” it says it is “not ONLY a contract but ALSO an interest in real property”.

Kinsella knows (or should know) all of this. It seems sometimes he banks on people being as ignorant of the law as Surda, who like him, have learned most of what they know about the law and IP from reading Kinsella.

Kid Salami, I know it goes without saying, but I think you have contributed greatly to this discussion. Thank you.

Peter Surda June 30, 2011 at 3:11 pm

Wildberry,

It seems sometimes he banks on people being as ignorant of the law as Surda, who like him, have learned most of what they know about the law and IP from reading Kinsella.

Since you have not provided any coherent legal argument in the first place, I wonder who is this supposed to impress.

Wildberry June 30, 2011 at 6:25 pm

Peter,

Did you actually read anthing written here, or did you just look up “insult” on google, like Kinsella did and let this fly?

I thought it was a pretty good legal argument. My question to you would be, how would you know one if you saw it?

Peter Surda July 1, 2011 at 3:41 am

Wildberry, I did not read your post, I only reacted to your hypocrisy. Which you have not addressed, as usually. You’re just faking being offended.

Stephan Kinsella July 2, 2011 at 2:17 am

Wildberry, you are so full of nonsense it’s really hard to know how to reply.

Kid Salami July 2, 2011 at 9:10 am

Wildberry – there are no “thanks” required here, I’m here for my own ends.

I’m really interested in the money and banking question and this might sound strange but i think the debate about FRFB and 100% reserves is fundamentally the same as this one, and these discussions are very educational.

Peter Surda July 2, 2011 at 9:58 am

Kid Salami,

I think the debate about FRFB and 100% reserves is fundamentally the same as this one.

Actually, I tend to agree, and I made the implication about an analogy about two times in the past (but I’m too lazy to search for the references).

The FRB opponents sometimes claim that because FR banks create copies of money without the owners’ permission, it violates the owners’ rights. As with IP, the two parts are not logically connected. Sometimes, the act of copying is accompanied by a rights violation, but sometimes it’s not. The anti-FRB-ers make the claim that there is some sort of legal connection between the original money and copied money. But money is an abstract concept. You might be able to succeed in this argument if banks were providing conflicting gold-deposit-certificates, for example. But money does not work like this anymore. Just like books do not “work” like they used to in the past. They both became abstract concepts.

Stephan Kinsella July 2, 2011 at 10:44 am

Peter, re FRB: if I follow you, I think I agree. Making a copy of some bill is not inherently wrong or fraudulent–but using it in some ways could be. THe analogy to IP it seems to me goes more to the legal-policy aspect of FRB–whether it should be banned, considered inherently fraudulent. But the analogy goes only so far, I think–if you copy an idea and use it, it’s hard to see how you can then “use” that idea fraudulently; while if you copy someone’s warehouse receipt, then it is easy to see how it *could* be used fraudulently.

And the analogy seems very tenuous in the economic case. Millions of people can use the same idea and this is good; the more that information spreads, the better for all. But the same is not true of money–all things being equal it’s better for the supply to be relatively fixed. Printing more money copies does not help economically, or at least, it’s not unambiguous.

Wildberry July 2, 2011 at 11:04 am

@ Stephan Kinsella July 2, 2011 at 2:17 am

Wildberry, you are so full of nonsense it’s really hard to know how to reply.

I uderstand it is dificult for you. You have a lot riding on this. So, take your best shot and stick with it. I’ll answer.

Stephan Kinsella July 2, 2011 at 11:41 am

Wildberry, no time or interest. Your charges are bizarre and ridiculous. Your view that you have some “gotcha” on me with your squirrelly views on easements makes no sense at all.

Wildberry July 2, 2011 at 11:50 am

@Kid Salami July 2, 2011 at 9:10 am

Indeed, this is all related to AET, since economics touches everything. As I said, I am not really an IP advocate because I think it is one of the great problems of our times, unlike Kinsella, who ranks IP #6. I view it as a great vehicle for discussion, and you are right; I’m learning a lot, too.

Wildberry July 2, 2011 at 11:52 am

@ Stephan Kinsella July 2, 2011 at 11:41 am

Wildberry, no time or interest. Your charges are bizarre and ridiculous. Your view that you have some “gotcha” on me with your squirrelly views on easements makes no sense at all.

Who could be surprised by your response? Please ckeck in with Surda on “avoiding debate”.

Wildberry July 2, 2011 at 12:12 pm

Kinsella and Surda,

You are fascinating, like a really good con artist.

Kinsella said:

Millions of people can use the same idea and this is good; the more that information spreads, the better for all. But the same is not true of money–all things being equal it’s better for the supply to be relatively fixed. Printing more money copies does not help economically, or at least, it’s not unambiguous.

What is wrong with this analogy:

“Many people can use the same “idea” (money), is to:
“Many people can use the same “idea” (book)”, as:

“Printing more money copies does not help (the people who own the originals) economically”, is to:
“Printing more book copies does not help (the people who own the originals) economically.

Seems like a pretty solid analogy. Disagree?

Peter Surda July 2, 2011 at 2:00 pm

Wildberry,

Seems like a pretty solid analogy. Disagree?

Producing more units of money is economically bad because money is used as a unit for economic calculation, and inflation screws that up. If governments would not interfere with money, the question would become irrelevant from practical point of view, because individuals would be able to choose from market-supplied money the one that they want without having to consider what the government wants. Books are not used as units for economic calculation, so the question is irrelevant anyway. As money is used for economic calculation whereas books are not, the analogy is flawed.

Peter Surda July 2, 2011 at 2:54 pm

Stephan,

Making a copy of some bill is not inherently wrong or fraudulent–but using it in some ways could be.

Yes, I agree. Also, the making of a copy could be wrong regardless of the usage of it, if you contractually agreed not to copy, or if by making the copy you are somehow violating other people’s property rights (e.g. trespassing).

THe analogy to IP it seems to me goes more to the legal-policy aspect of FRB–whether it should be banned, considered inherently fraudulent.

Correct. I think I said in the past somewhere on this site that (similarly as with IP), it is up to the party to the contract to make the distinction between fraud and non-fraud. Some FRB opponents make the argument that FRB is fraud because it alters the meaning (= value) of “their” unit of the money. This sounds very similar to what some IP proponents claim. And it is problematic for the same reason: unless the bank is physically altering your unit of money, or you have a contract with the bank, there is no legal basis for the relevance of your opinion.

if you copy an idea and use it, it’s hard to see how you can then “use” that idea fraudulently

Sure you can: plagiarism. Not that this is the typical case, but it just demonstrates the parallel.

And the analogy seems very tenuous in the economic case.

There is some merit here, like I explained to Wildberry. It is caused by money being using as a unit for economic calculation. But if governments did not interfere with money supply (e.g. legal tender laws, financial regulations, etc), this would become irrelevant as people could choose whichever money they wanted. Network effects might still have some influence but since the abolishment of government money meddling would dramatically reduce the distinction between national and international trade, there is a fair chance that over time the individual government fiat currency would be pushed out of circulation in favour of market-generated currencies.

Ideas are usually not a good unit of economic calculation. However, Bitcoin, being specifically designed to have features people expect from money, might be an exception. But even here you can see the distinction: you can copy Bitcoins as much as you want, but copying it does not allow you to double-spend it. That’s an ingenious design. In fact, the prevention of double-spending is lauded as one of the core features by Bitcoin proponents (who are typically not economists). It is fascinating how people from different fields come to the same conclusion.

Wildberry July 3, 2011 at 12:48 pm

@Stephan Kinsella July 2, 2011 at 11:41 am

Wildberry, no time or interest. Your charges are bizarre and ridiculous. Your view that you have some “gotcha” on me with your squirrelly views on easements makes no sense at all.

Be that as it may, here is what I think. I think it has been shown over the past year of discussing this with you that IP, specifically copyrights, can be recreated essentially as they now exist, without violating the very principles of Libertarian property rights you espouse.

Regardless of whether we agree on those principles, your own arguments are inconsistent with your own principles of legitimate property rights.

To summarize the argument:

• Property rights are limited to scarce and rivalrous goods.
• An author owns his original manuscript, before it is disclosed to anyone else. It exists as his own private property.
• Property rights are bundled rights which are individually alienable
• Title to these individual property interests (or “economic rights to property) can be transferred freely by contract.
• A contract may create a property interest through the operation of the doctrine of easement and servitude, permitting the transfer of limited title while retaining the benefits of the limitation of use attached to the property title.
• A servitude is both a covenant enforceable under contract at law, and an equitable servitude enforceable at equity.
• Servitudes require notice, and must touch and concern the property to run with the burdened property. Limitations which run to not require privity of contract to enforce.
• The manuscript is the burdened property.
• Any person acquiring a copy of a manuscript knows 1) they are not the author; and 2) of the existence of common social institutions, including the “common practice” of property owners imposing limitations of the use their property, including manuscripts and copies of it.
• Anyone acquiring a copy of a work they did not author is thereby estopped from denying constructive notice of possible limitations on its use.
• Since prohibited uses of the work touch and concern the property itself, with notice, the limitations would run with the property.
• A manuscript and copies of it are private property, and limitations of use imposed by servitude are legitimate and enforceable property rights.
• The terms and provisos of these limitations of use may be identical to the positive law of copyrights.
• Enforcing rights which one legitimately holds is not aggression.
• Benefits of a servitude attached to an original manuscript and all copies derived from it are legitimate property interests, and therefore enforcement of these rights is not aggression.

So you see, it is possible to recreate IP by contract through the operation a servitude, and not violate even Rothbardian principles of property rights. That seems like a rather significant assertion, one which you might be interested in addressing.

Peter Surda July 3, 2011 at 5:55 pm

Wildberry,

Any person acquiring a copy of a manuscript knows 1) they are not the author; and 2) of the existence of common social institutions, including the “common practice” of property owners imposing limitations of the use their property, including manuscripts and copies of it.

another instance of referring to vague term “acquiring”. You are using the term “acquiring” to denote causal relationship, rather than merely a contractual/servitudal/trespassory one. This is where your argument breaks down. Even if we agreed that a manuscript is burdened by servitude, it is still legally possible to obtain a copy without trespassing and without entering into a contract with anyone who ever possessed the original. You’re repeating the same erroneous claims over and over.

Wildberry July 3, 2011 at 10:28 pm
Stephan Kinsella July 4, 2011 at 12:06 am

Nymberry:

I am not replying to all your posts for a few reasons–time; preference; travel; and volume. And the ones I reply to are mainly for the benefit of lurkers, not for you, as you seem beyond the reach of reason. I mean this seriously. It is up to you whether to decide to be honest, sincere and intelligent.

I think it has been shown over the past year of discussing this with you that IP, specifically copyrights, can be recreated essentially as they now exist, without violating the very principles of Libertarian property rights you espouse.

This is utter nonsense. Let’s narrow this down. (And let me first not you sound illiterate in capitalizing Libertarian. I am not a member of the LP.)

IP means that in some cases the guy who thinks of an invention or creates an original work of art can legally prohibit everyone else from using or reproducing the work/invention without his consent. Right? That is what IP does.

Now, please give a clear example of how use of your “easement” (or whatever other) legal principle can make third parties subject to the legal control of the content/idea creator. WE concede, perhaps arguendo, to you that second-parties (those who contract with the content creator) may be liable or bound somehow by contract. You wave around the idea of “easements” in a vague way to imply that this can also hook third parties but when the rubber hits the road you vamoose. Give a clear example to show how third party C is somehow legally liable to A, because of A’s agreement with B? If not, I don’t intend to continue to bother with you even for the sake of spectators.

To summarize the argument:

• Property rights are limited to scarce and rivalrous goods.

They are not “limited” to it, but that is what they are for.

An author owns his original manuscript, before it is disclosed to anyone else. It exists as his own private property.

You continue to equivocate on this. You use manuscript in one sense as an owned physical object (a sheaf of paper with words on it); sometimes as a “work” in the copyright sense, which is a universal, or “ideal object.” Which is it, you intellectual fraud?

Property rights are bundled rights which are individually alienable

I don’t know what you mean by this. I refuse to assent to vague formulations that you can use for equivocation later.

Title to these individual property interests (or “economic rights to property) can be transferred freely by contract.

No, it has nothing to do with “interest” or “economic rights.” It is title to scarce resources that can be transferred by contract (and here we see you beginning to try your sneaky equivocation dishonesty).

“A contract may create a property interest through the operation of the doctrine of easement and servitude” — these are not doctrines; rather they are different words from different legal systems describing the basically same phenomenon — “permitting the transfer of limited title while retaining the benefits of the limitation of use attached to the property title.”

Sure, people can divide up ownership or control rights, whatever linguistic and legal-conceptual labels you apply to it.

“A servitude is both a covenant enforceable under contract at law, and an equitable servitude enforceable at equity.”

Who konws, who cares. We are not relying on positive law here but trying to discuss legal matters from a libertarian POV and using established legal concepts where useful.

“Servitudes require notice, and must touch and concern the property to run with the burdened property. Limitations which run to not require privity of contract to enforce.”

meh. who cares. this is sidetracking.

“The manuscript is the burdened property.
• Any person acquiring a copy of a manuscript knows 1) they are not the author; and 2) of the existence of common social institutions, including the “common practice” of property owners imposing limitations of the use their property, including manuscripts and copies of it.”

here you are equivocating by using “manuscript” in an ambiguous manner. If you mean an owned physical object, then no, not always: for sometimes people acquire informational patterns without using or possessing or “acquiring” the object. If you mean some pattern of information and refer to this as a manuscript that is owned, you are begging the question, which is typical for your ilk.

I think what is common in a free society is that if you reveal information to others by your actions, then you cannot whine if they learn from this information and maybe consult it as a guide to their future actions.

• Anyone acquiring a copy of a work they did not author is thereby estopped from denying constructive notice of possible limitations on its use.

Doesn’t follow at all since acquiring a “copy” does not imply that the acquirer ever used or “acquired” the original owned object.

• Since prohibited uses of the work touch and concern the property itself, with notice, the limitations would run with the property.

You seem to be playing lawyer with this repeated trotting out of the “touch and concern” positive law doctrine as if it is relevant to libertarian political ethics. It’s not, and you have not explained it.

“• A manuscript and copies of it are private property, and limitations of use imposed by servitude are legitimate and enforceable property rights. ”

More nonsense. Copies o something are private proeprty, but of the copier.

Stephan Kinsella July 5, 2011 at 11:49 am

Nymberry:

. I think it has been shown over the past year of discussing this with you that IP, specifically copyrights, can be recreated essentially as they now exist, without violating the very principles of Libertarian property rights you espouse.

Of course it has not. You are making a train of inconsistent arguments, and dishonest ones at that–lurching from utilitarian argument 1 to 2 when the first one fails, and so on. Your easement argument is the latest one that makes no sense at all, and I think you even know it. If A sells an object he owns–such as a book or mousetrap–to B, and puts some “easement” on it so that B may NOT use it for certain purposes (such as copying it or telling others how it works or using the information he gains from it), then this may be viewed as either a contract between A and B, or that A and B co-own the object. It doesn’t really matter for our purposes. The point is that whatever are A and B’s rights *to that scarce object,* this cannot prevent C from doing what he wants with his own property, even if his actions in using his own property are guided by knowledge C obtained from observing B’s use of the object or from observing the object itself. You have yet to even try to explain how C could possibly be bound. And if he is not, then third parties are not bound by the A-B ownership/contract relationship pertaining to some particular objects, and thus, you cannot get IP created out of such arrangements.

(I leave aside here the legal and practical problems even with B being limited: why would B buy something with such restrictions? And how could he agree never to use the information he gains? As I quote Tom Palmer in my Against IP monograph, “The separation and retention of the right to copy from the bundle of rights that we call property is problematic. Could one reserve the right, for example, to remember something? Suppose that I wrote a book and offered it to you to read, but I had retained one right: the right to remember it. Would I be justified in taking you to court if I could prove that you had remembered the name of the lead character in the book?”)

Regardless of whether we agree on those principles, your own arguments are inconsistent with your own principles of legitimate property rights.

Nope. As you can see in my Intellectual Property and Libertarianism, the plumbline Rothbardian-Austrian view of property rights leads cleanly and clearly to the anti-IP view.

• Property rights are bundled rights which are individually alienable

This is not uncontroversial; see the memory quote above.

• Title to these individual property interests (or “economic rights to property) can be transferred freely by contract.
• A contract may create a property interest through the operation of the doctrine of easement and servitude, permitting the transfer of limited title while retaining the benefits of the limitation of use attached to the property title.
• A servitude is both a covenant enforceable under contract at law, and an equitable servitude enforceable at equity.

Such positive law distinctions and classificaitons are not relevant here; they just serve to either confuse or cloud the basic libertarian property rights issues, or are an illegitimate appeal to authority.

• Servitudes require notice, and must touch and concern the property to run with the burdened property. Limitations which run to not require privity of contract to enforce.

These are positive law doctrines. You have not demonstrated their relevance, or their compatibility with libertarian property rights.

• The manuscript is the burdened property.
• Any person acquiring a copy of a manuscript knows 1) they are not the author; and 2) of the existence of common social institutions, including the “common practice” of property owners imposing limitations of the use their property, including manuscripts and copies of it.
• Anyone acquiring a copy of a work they did not author is thereby estopped from denying constructive notice of possible limitations on its use.

YOu appear to here be talking about an actual object originally owned by the author, and still subject to a servitude owned by that author (the “copy” of the manuscript–i.e. a physical book).

• Since prohibited uses of the work touch and concern the property itself, with notice, the limitations would run with the property.
• A manuscript and copies of it are private property, and limitations of use imposed by servitude are legitimate and enforceable property rights.
• The terms and provisos of these limitations of use may be identical to the positive law of copyrights.
• Enforcing rights which one legitimately holds is not aggression.
• Benefits of a servitude attached to an original manuscript and all copies derived from it are legitimate property interests, and therefore enforcement of these rights is not aggression.

all copies dervied from it? Imagine A sells a house to B and imposes a servitude on it that prohibits B from building a copy of it. But C who lives nearby likes the way B’s house looks so he builds a copy. THe arrangement between A and B cannot prohibit C from doing this. C never agreed to it, and he never used or possessed B’s house.

So you see, it is possible to recreate IP by contract through the operation a servitude, and not violate even Rothbardian principles of property rights.

It is not at all; you are either stupid or dishonest. You surely know that I do not “see” this, so you are intentionally being dishonest.

Wildberry July 1, 2011 at 8:54 am

@ Peter Surda July 1, 2011 at 3:41 am

Wildberry, I did not read your post,

If you did not ready my post, then how did you recoginze hypocracy?

If you do not understand the legal concepts, how can you understand if an arguement is “good” or “bad”?

If you don’t read or understand my post, how can you refute it?

Peter Surda July 1, 2011 at 10:07 am

Wildberry,

If you did not ready my post, then how did you recoginze hypocracy?

I explained exactly where the hypocrisy is. Also, you can’t even spell it in your mother language. You probably don’t even understand what it means. Not that it matters.

If you do not understand the legal concepts, how can you understand if an arguement is “good” or “bad”?

I provided third party references, such as Wikipedia, to support my arguments. They’re not even specifically libertarian. They clearly prove that you are wrong. I also several times explained that I am not interested in the question whether something is “good” or “bad”, rather in making logically correct arguments. You have clearly shown that you are not interested in making arguments at all.

If you don’t read or understand my post, how can you refute it?

I refute individual claims, rather than posts. Especially with regards to you, who manages to combine a wide array of unrelated claims into one post, this is a necessary step to ensure the arguments are correct.

Wildberry July 3, 2011 at 10:23 pm

Peter Surda July 3, 2011 at 5:55 pm

Any person acquiring a copy of a manuscript knows 1) they are not the author; and 2) of the existence of common social institutions, including the “common practice” of property owners imposing limitations of the use their property, including manuscripts and copies of it.

another instance of referring to vague term “acquiring”. You are using the term “acquiring” to denote causal relationship, rather than merely a contractual/servitudal/trespassory one.

If you think I am using a term ambiguously and you are right, you can’t assume what I mean. It would be helpful to hear your analysis of how the unintended meaning affects the argument, but you just make an assertion.

This is where your argument breaks down. Even if we agreed that a manuscript is burdened by servitude, it is still legally possible to obtain a copy without trespassing and without entering into a contract with anyone who ever possessed the original. You’re repeating the same erroneous claims over and over.

Speaking of vague terms, what does “legally possible” mean in this context? If all copies are the products of the original or a prior copy, how can you possibly acquire one “legally” without notice?

As was the main point of the discussion over the past two weeks, one rather important feature of a servitude is that privity of contract is not required, since the covenant that created it is a property interest in the burdened property. A property interest does not require negotiating a contract with every potential violator of those rights.

So if you fall back on the criticism that the property interest exists “without entering into a contract with anyone who ever possessed the original”, then you are simply ignoring the critical feature of servitudes; they do not require privity.

They do require notice, so if you want to argue that someone has or can acquire a copy of a manuscript without actual or constructive notice of the burden, you will need to explain how that might happen. I think that is rather difficult, unless you hypothesize that someone just gets teleported onto planet earth and doesn’t know any better.

Even then, you would have to disagree with the concept that “ignorance of the law is no defense”. Do you think that if someone claims they did not know about speed limits, they should be exempt from speeding laws?

I don’t think anything is falling apart yet, except perhaps your criticism. Perhaps you could back up and take another run at it?

Stephan Kinsella July 4, 2011 at 12:10 am

“Any person acquiring a copy of a manuscript knows 1) they are not the author; and 2) of the existence of common social institutions, including the “common practice” of property owners imposing limitations of the use their property, including manuscripts and copies of it.”

If I learn from observing the activity of others that you can use a wheel productively, or fire to cook food, or arrange logs into a cabin, I don’t care if I am the “author” if I want to use this information in my own activities. If I want to tell a story (say, Hansel and Gretel) or a joke to my kid or friends to entertain them, I don’t care if I am “the author”. This connection is of no relevance. More nonsense by the IP socialist moron.

Wildberry July 4, 2011 at 10:56 pm

None of the activities you cite are prohibitied by copyrights.

It is relevant to (duh) the issue of seritudes and whether the “notice” criteria is satisfied for the servitude to “run with the” property.

More nonsense by the anti-IP ideologue.

Peter Surda July 4, 2011 at 1:56 am

Wildberry,

If you think I am using a term ambiguously and you are right, you can’t assume what I mean.

On the contrary. I see through your lie, and exposed it. You avoid confronting it. You are using the word “acquire” to denote that there is a causal relationship between an original and a copy, and use this as an explanation why the author of the original has a claim on the possessor of the copy. But when I explicitly formulate this formally, you suddenly step back and start confusing.

If all copies are the products of the original or a prior copy, how can you possibly acquire one “legally” without notice?

The copy is not the same object as the original and there does not need to be a contractual or trespassory connection between them. Again, you are using causality to “prove” that you are right. You’re a fraud, Wildberry.

If all copies are the products of the original or a prior copy, how can you possibly acquire one “legally” without notice?

Again: a copy is not the same object as the original. If one obtains a copy, it does not follow that a notice about an original has any legal effect on him.

A property interest does not require negotiating a contract with every potential violator of those rights.

Assuming this was true, you would still only prove that the interest affects the original, not the copy.

So if you fall back on the criticism that the property interest exists “without entering into a contract with anyone who ever possessed the original”, then you are simply ignoring the critical feature of servitudes; they do not require privity.

See above.

I don’t think anything is falling apart yet, except perhaps your criticism. Perhaps you could back up and take another run at it?

I explained it several times, you fraud. You avoid confrontation, you coward.

Wildberry July 4, 2011 at 11:06 pm

There is no confrontation run from.

You simply ignore, for whatever reason, the entire discussion of servitudes as a device for causing a limitation to “run”.

Perhaps because you are not really interested in IP, you simply fail to read or understad what is posted here. Or perhaps you never grasped the concept, I really don’t know.

Happy Independence Day from America, land of the free.

Peter Surda July 5, 2011 at 3:09 am

Wildberry,

You simply ignore, for whatever reason, the entire discussion of servitudes as a device for causing a limitation to “run”.

On the contrary, you ignore that servitudes to dot “jump” to different objects. They “run” with the original. The only difference to a situation without servitudes is that purchasing an original might bind you to some restrictions (whereas without servitudes, it might not). But obtaining a copy is unaffected.

Perhaps because you are not really interested in IP, you simply fail to read or understad what is posted here. Or perhaps you never grasped the concept, I really don’t know.

I clearly explain the errors in your claims, and you ignore them.

Wildberry July 5, 2011 at 10:49 am

@Peter Surda July 5, 2011 at 3:09 am

I believe you said elsewhere you didn’t see what my “general case” comment had to do with your argument.

The general case is that all copies ARE derived from the original, meaning that thhere original and all copies carry the limitation of use. Also, it assumes there is notice and that it touches and concerns the original and derived copies, as I have explained elsewhere. The alleged “copier” cannot acquire a copy any other way. That is the general case.

Therfore, make your objections to the general case; why is this a violation of libertarian (by that I actually think you mean Rothbardarian) property principles.

That is the point; there is a general argument for re-creating IP without violating those principles. Do you think you can stick to that issue? All of this other wriggling on the hook is just posturing, childish ad hominem, and non-responsive.

Peter Surda July 5, 2011 at 11:32 am

Wildberry,

I believe you said elsewhere you didn’t see what my “general case” comment had to do with your argument.

You would need to be more specific, this could mean too many things.

The general case is that all copies ARE derived from the original…

All copies are causally related to original. But they are not necessarily connected through property rights or contracts. You limit yourself to enumerating some ways of making copies, but neglect to take into account other ways, which do not fit into your framework.

The rest of your comment is irrelevant since you make a fundamental error here.

Wildberry July 5, 2011 at 12:32 pm

Don’t get ahead of yourself.

If IP can be created under these general conditions, that is enough.

It is a secondary case to show that some copies can be made without being limited by the servitude in question.

I believe you have not conceded as much. Am I wrong? How?

Peter Surda July 5, 2011 at 1:05 pm

Wildberry,

If IP can be created under these general conditions, that is enough.

The whole argument is deceptive, since the conditions are not general. They are fringe. They do not represent the way copies are typically created, nor does IP typically refer to situations outlined in these fringe conditions. Your whole effort is meaningless.

It is a secondary case to show that some copies can be made without being limited by the servitude in question.

The vast majority of copies are indeed created outside of the conditions you label “general”.

I believe you have not conceded as much. Am I wrong? How?

You are wrong and a liar, since I did that many, many times, and you ignored it. You’re a despicable liar. It’s clear that you do not want an interactive debate, with your approach your lies would be exposed in seconds.

Wildberry July 5, 2011 at 8:37 pm

@ Peter Surda July 5, 2011 at 1:05 pm

The vast majority of copies are indeed created outside of the conditions you label “general”.

This is debatable, but irrelevant to the question. The question is whether in Ancaptopia, a servitide can be legitimate in the way I have described it? Is it possible to create limitations of use as a property interest in a copy made by an author, and bind anyone who takes possession of it, even if there is no contract between that person and the author.

If you answer is no, then explain why you do or do not allow such a device to secure similar property interests in land. Why, if you suddenly found yourself in Ancaptopia, would you dispense with the legitimacy of servitudes? Easements? Covenants?

Peter Surda July 6, 2011 at 1:55 am

Wildberry,

The question is whether in Ancaptopia, a servitide can be legitimate in the way I have described it?

Once again, a servitude only binds people who enter into some sort of a contract, e.g. they buy the burdened property. That makes the whole question pointless.

Is it possible to create limitations of use as a property interest in a copy made by an author, and bind anyone who takes possession of it, even if there is no contract between that person and the author.

Furthermore, servitudes do not apply to possessors but owners. To apply restrictions to non-owner possessors, such restrictions need to be a property rights violations as such. So even this step in your argument is wrong.

If you answer is no, then explain why you do or do not allow such a device to secure similar property interests in land.

Once again, servitudes apply to owners, not possessors, and neither do they apply to non-possessors.

Why, if you suddenly found yourself in Ancaptopia, would you dispense with the legitimacy of servitudes? Easements? Covenants?

You are derailing the flow of argumentation to hide the errors in your claims.

Wildberry July 6, 2011 at 10:39 am

Saying that a question is “pointless” is merely an excuse for not giving an answer.

My moma use to say, “Beware of the person who too easily accuses others of being a liar.” I think that she meant that such a person expects everyone else to do what they do.

It is a simple question. Think it over, and provide an answer, if you dare.

Peter Surda July 6, 2011 at 11:38 am

Wildberry,

you did not address my arguments. I am unable to properly answer your question, because you are not using those terms (servitudes/easements/covenants/whatever) in a coherent manner. In your elaborations, you omit to describe the status of conditions necessary for a clear conclusion. When I ask you about those conditions, you avoid. Fix first the logical errors in your claims, then I’ll reply.

If you insist however that I reply, then my reply is: it depends.

I have been explaining for a long time now, what it depends on, yet you’re completely oblivious to it.

Wildberry July 6, 2011 at 12:00 pm

@Peter Surda July 6, 2011 at 11:38 am

You said: “it depends”

On what? Use examples or diagrams of whatever you want.

Peter Surda July 6, 2011 at 12:24 pm

Wildberry,

On what?

Like I elaborated many times, it depends on whether a contract or a property right was violated in the first place. If a property right was violated than the whole servitude is irrelevant to the conclusion. If there is a contract, then the person affected must voluntarily enter into it. Stephan’s description matches this framework. Yours is deliberately vague.

IP, however, also applies to situations when none of the above conditions were fulfilled. The actual similarity between IP and servitudes is miniscule, but for some unexplicable reason, you insist on calling it “the general case”.

I explained this several times already. If you want to repeat your errors, kindly do it somewhere else.

Wildberry July 6, 2011 at 1:24 pm

@ Peter Surda July 6, 2011 at 12:24 pm

If a property right was violated than the whole servitude is irrelevant to the conclusion.

What if the property right is the servitude? Did you read Kid Salami’s question in response to the description of the distinction betwen a contract and a servitude; about how it creates a property interest?

You seem to be saying that only property rghts outside of a servitude are relevant. What I am saying is that the property rights are in fact CREATED and DEFINED in the servitude. The question is, do you recognize the legitimacy of a servitude, as Knsella apparently does?

The “general case” you are mischaracterizing is this: Third party C acquires possession of a copy of an original work (a tangible book) that is burdened with a servitude, limiting the right to make copies. C makes a copy. There is no question that the limitation exists, or that the new copy is an exact duplicate of the original he copied from. No other asumptions about teleportation, perfect memory or anything else. That is the general case. All C does is take possession of the original (copy) and makes a duplicate with his own private means. You may assume that he has notice either because a) he knows it is a convention that authors place such servitudes on their work that he is not the author, or b) he reads the “notice of limitations against copying” on the first page of the book.

Is C bound by the terms of the servitude? Why not? You cannot say “contract” because we are talking about servitudes.

nate-m July 6, 2011 at 1:55 pm

b) he reads the “notice of limitations against copying” on the first page of the book.

This sort of thing has been done to death in the past. Your starting to go back to copyrights-as-logorights. I don’t think that a notice on a first few pages of a book is a valid contract.

If Party C agrees to not copy as condition of contract in order to obtain the book then if he copies the book then he should compensate the original owner of the book for whatever the contract stipulates.

All that is perfectly valid. But there are a few ways to obtain a book legally without any agreement with anybody else. And what your describing only duplicates a relatively small and uninteresting aspect of copyrights.

Peter Surda July 6, 2011 at 2:29 pm

Wildberry,

What if the property right is the servitude?

Servitude does not create new property rights, it transfers existing ones. If an act (e.g. copying) as such is not a violation of property rights, and the actor did not agree to any contracts, then the existence or absence of the servitude is irrelevant for the actor.

What I am saying is that the property rights are in fact CREATED and DEFINED in the servitude.

You err. They are not created by the servitude, they are transferred, or if you want, distributed, among the parties to the contract.

The “general case” you are mischaracterizing is this

I am not mischaracterising anything. You are making up stuff.

Third party C acquires possession of a copy of an original work (a tangible book) that is burdened with a servitude, limiting the right to make copies. C makes a copy. There is no question that the limitation exists, or that the new copy is an exact duplicate of the original he copied from.

I can only repeat that you omit the relevant factors, i.e. whether C agreed to any contracts, or whether he violated property rights of the owner of the book.

Your claim boils down to the assumption that if two people agree, they can create out of nothingness new rights. That’s plainly false. They can merely redistribute existing rights. Unless there is as such a right not to have your property copied, a servitude cannot create it either. It can only create contractual restrictions of the behaviour of subsequent owners of the said property.

Is C bound by the terms of the servitude?

C is bound by:
- property rights in the book
- contracts he entered
Your example omits the data necessary to conclude whether either of these occurred. The presence or absence of the servitude is, in general, irrelevant.

Wildberry July 6, 2011 at 4:10 pm

@ nate-m July 6, 2011 at 1:55 pm

I don’t think that a notice on a first few pages of a book is a valid contract.

Have you been following along? We are not discussing contracts, so don’t use that as a rebuttal.

If Party C agrees to not copy as condition of contract in order to obtain the book then if he copies the book then he should compensate the original owner of the book for whatever the contract stipulates.

Agreed, but this is irrelevant to the current discussion.

All that is perfectly valid. But there are a few ways to obtain a book legally without any agreement with anybody else. And what your describing only duplicates a relatively small and uninteresting aspect of copyrights.

I am asserting that the fundamental features of copyrights can be created without violating Kinsella’s principles of property rights. The can be created without any appearance of the State.

So excuse me for not tackling every argument ever made against copyrights and IP. Plenty of time for that.

Now, are you saying that, in the case I am describing, that a third party CAN be bound by limitations of use that burdens a book, under the same operation of property rules as exist for real property? No objection?

Good. Then tell me all the ways someone can legally obtain a book, and to escape the obligation to respect the property rights of the author, who has created a property interest in the limitation of use of that book through the mechanism of servitude.

nate-m July 6, 2011 at 6:33 pm

I am asserting that the fundamental features of copyrights can be created without violating Kinsella’s principles of property rights. The can be created without any appearance of the State.

You could get close to it with contract laws.

But you have to realize that what your discussing, a transfer of book from one guy to another, is really just a very minor aspect of copyrights.

A few examples:

* Making a recording music being played in public from a jute box and then selling a copy of it.

* Making a recording of music or video being broadcasted over radio and streaming it over the internet.

* Copying a discarded manuscript and putting it in a library

* Writing a Integrated Development Environment for embedded Linux-based OS that:
1) Runs on a PC utilizing libraries and JVM provided by a third party
2) Compiles user-created software code utilizing a derivative of both your copyrighted software and the third party JVM JDK, into byte code.
3) Provides for rebuilding that byte code (which is now a derivative of your software, the third party JVM software, and user-software software, and also is derivative works of probably include 4th and 5th and 6th and 7th party libraries and source code as part of the program. Not to mention the OS all this is meant to run on) into a entirely different bytecode. This is refactoring the code in a massive way and is totally automated.
4) then that end user can take that re-compiled bytecode, completely independent of you or your IDE or anything else and put it on their website and/or your website.
5) Allow consumers to download that program off the internet and use it on a custom-built JVM-like environment (which behaves very differently and has nothing to do with the JVM software mentioned above) that runs on various embedded phones from various vendors around the world that provide the phones and the software independent of you.

All those things are illegal and will get you sued under copyright. These sort of copyright restrictions can’t hope to be recreated or explained through any of the servitude type things you guys are discussing.

Now, are you saying that, in the case I am describing, that a third party CAN be bound by limitations of use that burdens a book, under the same operation of property rules as exist for real property? No objection?

I don’t understand the distinction your trying to make with ‘under the same operation of property rules as exist for real property?’ question.

If you transfer a book from one party to another then that is the transfer of real property. If the party receiving the book agrees to not copy and/or redistribute copies of that book then that’s a valid restriction, since it would be part of a voluntary exchange. So that is, in fact, a operation of property rules on real property. The real property is the book, the servitude is that you agree to not make copies of it.

You can even complicate matters by making that person agree that if he going to give that book to any other person then that person must agree to the same restrictions as he did before the transfer can happen.

But this only covers a relatively uninteresting and trivial aspect of copyrights and does not really have little to do with the full effect and (certainly nothing to do with the scope) of copyright law. It is merely creating a legal framework of something resembling the behavior of only one aspect of copyright law.

For example:

It doesn’t extend to putting any additional restrictions third parties and begins to break down when your dealing with a issue of derivative works, which are both core to copyright.

Say I am a performance artist and as part of my artwork I perform a street act in which I writhe naked in the torn up remnants of your book and glue, then I proceed to roll my body against a walkway and wooden fence while carefully arranging your manuscript in a way that makes a mockery or your other books or whatever.

Then I leave this walkway and fence and charge money for people to access it and photograph it in remembrance of my great performance.

Under copyright this would be a derivative work and you would be able to sue me for such things. But under what your describing with servitude and such things then you could not.

The critical difference here is that copyright is default-negative. That is all rights are reserved automatically. In any question about licensing or any dispute on the use of a copyrighted work then it will default to restrictions and favor the controls of the original creator(s) of the derivative work.

What your talking about with the transfer of property and servitude and whatnot is it the exact opposite. It’s default-positive… all uses and all rights are relinquished totally unless specifically innumerate. No rights are reserved and any dispute over use of the physical item will tend to default to the person that received the item.

Another example:

If you wrote a book and sold some copies here and there, but one day left your book abandoned on the side walk. Then a person could find your book and come into ownership of it legally, but not be covered by any sort of servitude that your customers would of agreed to under the condition that they obtained physical copies.

That way even if you were able to manage to create a contract-servitude (or whatever) with default-negative (restriction on use favoring the control of the original creator) then restrictions would not transfer to that person who happened to walk upon the book in the street.

Wildberry July 6, 2011 at 6:56 pm

Nate-m

A very reasonable response, but let me say in the most neutral of ways, the fact that you don’t understand the distinction being made here kinda sets the stage for all the other stuff you say.

First, I fully understand what you are saying and your points. These are not new to me. And you are right that the simple case that I have constructed here does not cover all of the various combinations of facts that are relevant to the operation of copyrights, accross all forms and all media and all acts.

Second, one key issue, which many here do not fully appreciate, is the important, critical distinction between the way contracts operate, and the way property rights operate. That is critically important in the context of IP in general and copyrights specifically.

I am simply arguing, with somewhat esoteric legal doctrines from property law, that property rights in land, as they currently exist and as Kinsella says are fully compatible with libertarian principles, are nearly identical to their operation in the context of copyrights. Like all property rights, they do not depend on the existence of a contract between those who possess rights, and those who may violate them.

Unfortunately, too many people here know what they know about property rights and IP from reading Kinsella. Because of that, I have attempted to use his own arguments and property principles to demonstrate the validity of my assertions.

Naturally, he concedes little, even when he fundamentally agrees with my position. I believe the reason is because to concede this, that property rights are indifferent to the object of these rights, this makes it much more difficult to argue against the principle of IP without contradiction to those same principles in another context.

All I have ever sought here is to discuss the relative merits of the anti-IP and pro-IP positions starting from a fair reading of the existing laws, and a reasonble interpretation of the principles being employed to distinguish and contrast that positive law with the principles of libertarianism and AET.

Why this has met with so much resistence and bad behavior is anyone’s guess.

Though you and I have crossed swords in the past, let me acknowledge you for the reasonable tone of your current post.

nate-m July 6, 2011 at 8:59 pm

Second, one key issue, which many here do not fully appreciate, is the important, critical distinction between the way contracts operate, and the way property rights operate. That is critically important in the context of IP in general and copyrights specifically.

Well yeah private property rights and contracts are different. Contracts cover voluntary agreements between individuals and private property rights help determine who controls what property. But copyrights don’t act or behave like either of those things.

So while it may sound superficially correct to say that:
“A man can own a field around a lake, but have a easement that people are allowed a path to that lake.” is the same as “A man can own a book, but have a easement that he is not allowed to copy it”

On closer examination you’d see that it’s really quite a false statement.

2 reasons this is so are (although it’s not limited to it):
A easement like a path to a lake is not going to translate to a easement to all paths to all lakes: even if those other properties are a 1:1 copy of that parcel of land. (say in a ‘levittown’ style housing development)

Copyrights allow a external party to exert a significant number of restrictions on the actions of every single owner of the derivative work. (many restrictions over many people over many pieces of private property, for the sake of a very few/one person) Easement allows a single (or at least very restricted) liberty that a person can have on another person’s property. (a single liberty on the use of a specific private property for the sake of potentially many people)

So they are very nearly complete opposites.

Why this has met with so much resistence and bad behavior is anyone’s guess.

Welcome to the internet.

However (some advice); playing the victim card when people are purposely flaming and berating you as punishment for what they perceive as your poor communication skills and/or bad behavior is not going to help you get your point across. Trying to feign innocence and behave over-reasonable to garner the support of third parties is a transparent form of manipulation and will only cause more negative responses. Being right (or wrong) on a particular subject is not going to excuse behavior.

In other words: If you don’t like the flames, get out of the fire. They are purposely insulting you for what they consider good reasons and in this situation complaining about it serves no positive purpose. Positive choices are either to continue to trudge along and ignore the barbs or just go find some other venue to discuss these things.

This is the sort of thing I’ve learned from experience.

Wildberry July 7, 2011 at 7:15 pm

@nate-m July 6, 2011 at 8:59 pm

But copyrights don’t act or behave like either of those things.
2 reasons this is so are (although it’s not limited to it):

A easement like a path to a lake is not going to translate to a easement to all paths to all lakes: even if those other properties are a 1:1 copy of that parcel of land. (say in a ‘levittown’ style housing development)

Let’s examine this statement. “A easement, like a path to a lake, is not going to translate to a easement to all paths to all lakes:” is equivalent to:

“An easement attached to a specific unit of land that provides access to a lake from other units of land, is not going to translate to an easement attached to all land leading to all lakes”

I agree with this statement. It is true.

It is the equivalent to “A limitation in the right to copy a specific book is not going to translate to a limitation on all copying of all books.” Also true.

Copyrights allow a external party to exert a significant number of restrictions on the actions of every single owner of the derivative work.

If the author A owns the original manuscript, and then makes one copy, and places a restriction on that copy, and gives it to person B, you are OK with that because you call it a contract.

But if person B leaves it on a bench and person C picks it up, you are not OK with restricting him, because he should not be restricted by what A and B agreed to. C did not agree, right?

Yet if person A gives B the right to enter his land, he does not automatically give everyone, including C that same right. They are still excluded. If A refuses B, then everyone is excluded; no exceptions. A’s right to “exclude” covers each and every person that comes onto his property, even though A has no contract with them. On the other hand, if someone does not try to come onto A’s property, A has nothing to say about where else they go. A’s rights to exclude only apply to his specific rights in his specific property, not all property everywhere. But it does apply to all people everywhere, but only if they attempt to trespass.

Is it equally true to say that A has a legitimate right to exclude C from land, but does not have a legitimate right to “exclude” C for property other than land? I say why not? Property is property.

So they are very nearly complete opposites.

With my reasoning, I come to the opposite conclusion; property rights operate uniformly, regardless of the specific property or the specific right in question.

This brings us back to the central question, does a right “not to copy my property” exist, and if so, how does it arise and operate consistent with other property rights?

Servitude is a device in real property that describes how this can happen with copyrights. If you match of the elements of one to the elements of the other, they are a perfect analog.
Your second objection:

(many restrictions over many people over many pieces of private property, for the sake of a very few/one person) Easement allows a single (or at least very restricted) liberty that a person can have on another person’s property. (a single liberty on the use of a specific private property for the sake of potentially many people)

Sounds a little like “the rights of the many are greater than rights of the one”, which is contrary to my notion of private property rights. Perhaps I misunderstand what you mean?

Easements work because two people (say) who have control of their own property can make an agreement that takes the form of a property interest; a rearrangement of their respective rights. Once re-arranged, it applies to anyone and everyone that interacts with that property in a specific way, just as it did before it was rearranged. This is the universal operation of property rights. Only things that operate this way can be properly characterized as property. Property rights do not require pre-negotiated contracts to affect everyone relative to their actions and this particular property. There is no difference in the case of “IP” property. It follows the same rules, despite what you may have heard.

Welcome to the internet.

Thank you for the advice. I am not yet well-done, apparently. The only true restraint is self-restraint. See you down the road.

So they are very nearly complete opposites.

With my reasoning, I come to the opposite conclusion; property rights operate uniformly, regardless of the specific property or the specific right in question.
This brings us back to the central question, does a right “not to copy my property” exist, and if so, how does it arise and operate consistent with other property rights?
Servitude is a device in real property that describes how this can happen with copyrights. If you match of the elements of one to the elements of the other, they are a perfect analog.

.Welcome to the internet.

Thank you for the advice. I am not yet well-done, apparently. The only true restraint is self-restraint. See you down the road.

Wildberry July 6, 2011 at 5:37 pm

@Peter Surda July 6, 2011 at 2:29 pm

Wildberry: “What if the property right is the servitude?”

Servitude does not create new property rights, it transfers existing ones.

OK, if you prefer thinking of it that way, that’s fine. But as a nit, it doesn’t really transfer rights, since the person that starts out with the benefit of the burden is the one who still has it after the creation of the servitude. That is why we use the term “burdens the servient property”. But you are correct, it does not create “new” property rights, it re-arranges them from what they would otherwise be when the burdened property is transferred.

If an act (e.g. copying) as such is not a violation of property rights, and the actor did not agree to any contracts, then the existence or absence of the servitude is irrelevant for the actor.

Yes, it is a passive limitation until some act violates it, yet it still exists.

“What I am saying is that the property rights are in fact CREATED and DEFINED in the servitude.”

You err. They are not created by the servitude, they are transferred, or if you want, distributed, among the parties to the contract.

Let’s go with that for now. Let’s agree that the author can “transfer” the right to copy to himself, while still transferring a book without that right. In this way, he retains the benefit of the right to copy, even though he no longer possesses the book. OK?

“The “general case” you are mischaracterizing is this”

I am not mischaracterising anything. You are making up stuff.

Yes, I am making up a fact pattern to address with the application of the principles we are discussing here. No need to accuse me of pissing in your taco.

“Third party C acquires possession of a copy of an original work (a tangible book) that is burdened with a servitude, limiting the right to make copies. C makes a copy. There is no question that the limitation exists, or that the new copy is an exact duplicate of the original he copied from.”

I can only repeat that you omit the relevant factors, i.e. whether C agreed to any contracts, or whether he violated property rights of the owner of the book.

Well, gee Sparky, that is the million-dollar question. We agree the rights exist. What I’m trying to get you do say is whether you think they can be violated by someone who has not entered a contract with either A or B. So it is not “C agreed to any contracts”, it’s the other one. Your other left.

Your claim boils down to the assumption that if two people agree, they can create out of nothingness new rights. That’s plainly false. They can merely redistribute existing rights. Unless there is as such a right not to have your property copied, a servitude cannot create it either. It can only create contractual restrictions of the behaviour of subsequent owners of the said property.

Well, is there such a right if an owner of property withholds that right as a condition of transfer of his property? Can it create “contractual” restrictions that are not a contract, but rather a….wait for it…SERVITUDE?
In land, do you have a right to keep mineral rights but sell the rest? Why?
If I sell my land to you, keeping mineral rights to myself, and you sell to another person, who abandons the property, and party C comes along and pitches a tent on the land, can he start mining for silver? How come?
“Is C bound by the terms of the servitude?”
Exactly my question. Oh, that was my question…

C is bound by:
- property rights in the book
- contracts he entered
Your example omits the data necessary to conclude whether either of these occurred. The presence or absence of the servitude is, in general, irrelevant.

Do you deny, under the facts and circumstances I’ve described, that “property rights in the book” exist? Is it possible, under any theory you may personally cherish, that an author can own exclusively a book he wrote, retain the right to copy for himself, yet transfer the book to another? If that right exists, as a property interest mind you, then would it be possible for a third party to violate it without having a contract with the author or with any other person?

To help you conceptualize what I’m asking, I’ll give you an analogy (but don’t get distracted now); if you own property in land, you don’t need a contract with someone before you can eject them from your land. That is because a trespasser does not have the property right to trespass.

If your answer is no, there can be no property interest in the book, as I’ve described it, why not?

If your answer is yes, then how does it work, in your unique way of explaining things?

Peter Surda July 7, 2011 at 3:53 am

Wildberry,

But as a nit, it doesn’t really transfer rights, since the person that starts out with the benefit of the burden is the one who still has it after the creation of the servitude.

In the case of positive servitudes, the sale transfers some rights from the seller to buyer, while the seller retains some. In the case of negative servitudes, the sale transfers some rights from the buyer to the seller.

In the case of positive servitudes, the seller never relinquishes some rights in the first place. That is why he can apply such a restriction to anyone. The consequences of a violation of such a restriction would have, in general, been the same even if the servitude was never created in the first place, and therefore using servitudes to describe such a situation is redundant and misleading.

In the case of negative servitudes, the buyer (and subsequent buyers) transfer some rights to the original seller. This restriction is a consequence of the contract, so it cannot be applied to people who are not a party to a contract.

If there is no right not to have your property copied in the first place, then logically a restriction to copy is a negative servitude and therefore only relevant to people who enter into a contract.

Is there, as such, a right not to have your property copied?

That is why we use the term “burdens the servient property”.

This label is misleading. You’re essentially use a metaphor to describe a meaning, and the use the metaphor to derive a new, unrelated, meaning.

Yes, it is a passive limitation until some act violates it, yet it still exists.

In order for a violation to occur, either property rights or contracts need to be violated. Using servitudes to refer to such acts is misleading.

Let’s agree that the author can “transfer” the right to copy to himself, while still transferring a book without that right.

This is only correct if the right not to have your property copied follows from the ownership of the property. However, I clearly disproved the connection several times.

he retains the benefit of the right to copy

This is not what happens. He does not “retain” the right to copy, since he did not have it in the first place.

they can be violated by someone who has not entered a contract with either A or B

You are still misrepresenting the case. In order to violate a right, of course no contract is necessary. But servitudes do not affect this since servitudes do not create rights, they transfer rights.

Well, is there such a right if an owner of property withholds that right as a condition of transfer of his property?

In positive servitudes, yes. In negative servitudes (i.e. rights which did not exist in the first place, such as copying), no.

Can it create “contractual” restrictions that are not a contract, but rather a….wait for it…SERVITUDE?

Creating a servitude does not create a new right that did not exist before. It transfers existing rights.

In land, do you have a right to keep mineral rights but sell the rest? Why?

Because you have the right in the minerals in the first place. You do not gain a right to the mineral rights by selling the land and burdening it with a servitude.

If I sell my land to you, keeping mineral rights to myself, and you sell to another person, who abandons the property, and party C comes along and pitches a tent on the land, can he start mining for silver? How come?

Since you had the right in the minerals in the first place and never relinquished the rights, the act is violating your rights.

If you do not have a right to not have your property copied, your opinion whether you like other people copying your property or not is irrelevant. Unless, of course, you have a contractual relationship with them.

Do you deny, under the facts and circumstances I’ve described, that “property rights in the book” exist?

I deny that the right not to copy the book is a property right in that book. I clearly explained several times that there is no legal or even causal connection between the two. The connection can be created created through contracts, not through mystification and confusion.

Is it possible, under any theory you may personally cherish, that an author can own exclusively a book he wrote, retain the right to copy for himself, yet transfer the book to another?

A right to copy is not a consequence of a property rights in the book, so saying that the author can retain it makes no sense.

If you own property in land, you don’t need a contract with someone before you can eject them from your land. That is because a trespasser does not have the property right to trespass.

The illegality of trespass follows from the property rights in the land. It is not created by servitudes. Servitudes do not create a right not to have your property copied either, so unless there is a right not to have your property copied in the first place, the analogy is a failure.

You’re using circular logic. Your whole effort to show how IP can be created through servitudes requires that there is a right not to have your property copied in the first place. The whole debate is pointless.

Wildberry June 29, 2011 at 10:07 am

Of course, knowing little about what he’s talking about, Surda reaches the wrong conclusion.

The sale is not “invalid”, it is voidable. The distinction is that the buyer may want to keep possession, especially if it is a land sale. So the law secures a right for the buyer to seek a specific rememdy over another possibility.

He may want to have the purchase price adjusted to what he reasonably would have paid had he had notice.

He may want out, in which case the sale is rescinded. The seller may defend that the burden is too small in relation to the benefit to rescind.

An injunction against enforcement may be issued.

The servitude may have been abandoned, or the conditions under which it was created have been destroyed.

He may even pursue having the servitude removed by entering negotiations

Peter’s idea of the law seems to be that the judge listens to the facts and “decides” what should happen. In fact, the complaining party, who is enforcing his rights secured under the law, has considerable influence on the remedy.

Peter does not appreciate that the law is not software. It is an application of rules in the context of specific facts, and since facts can be disputed, they are subject to other rules of analysis, like rules of evidence and burdens of proof.

The kind of analysis Peter offers is what you get when one who knows little of the subject thinks his power of logic alone will always lead him to the right answer, neglecting that facts and circumstances that, if not considered may lead one to the wrong, or “false” conclusion.

Peter’s post illustrates that observation.

Peter Surda June 29, 2011 at 12:33 pm

Wildberry,

Of course, knowing little about what he’s talking about, Surda reaches the wrong conclusion.

I base my analysis on recalling the few law courses I took during my university studies and adding Kinsella’s approach. They both result in the same conclusion. If the two parties of a contract do not share a common understanding regarding the nature of the contract, there is no contract. If the seller is selling something else than the buyer thinks he’s buying, then there is no sale. It’s not voidable because it never came to place.

It’s voidable/rebate-able only when the product being sold is merely defective, as opposed to being something completely else then the “seller” claims it to be. Of course, you could claim that the unmentioned easement is a defect rather than a completely different product, but I disagree, because it misrepresents the legal status of the object (as opposed to, for example, a bump or a scratch). But hypothetically, the seller might nevertheless agree on a price reduction upon finding about the easement, at which point he becomes bound to it. At no point, however, is he bound by restrictions he did not contractually agree to nor such that represent a violation of property rights of a third party.

The servitude may have been abandoned, or the conditions under which it was created have been destroyed. He may even pursue having the servitude removed by entering negotiations

Which, of course, has nothing to do with the sale, or the presence/absence of fraud.

Wildberry went off into a debate leading nowhere, confused everyone and presented himself as the one having a superiour position.

Wildberry June 30, 2011 at 11:04 am

@Peter Surda June 29, 2011 at 12:33 pm

Of course, knowing little about what he’s talking about, Surda reaches the wrong conclusion.

I base my analysis on recalling the few law courses I took during my university studies and adding Kinsella’s approach.

Which explains why you reach the wrong conclusion.

What it doesn’t explain is why you completely ignore my comment, here:

http://blog.mises.org/17345/stallman-an-internet-connectivity-tax-to-compensate-artists-and-authors/comment-page-1/#comment-790270

So you did not get sufficient information from your university, Kinsella or me to do anything other than repeat yourself as if I din’t understand what you said, and already addressed your faulty reasoning, and then you close with ad hominem.

And why I said what I did here:

http://blog.mises.org/17442/how-government-values-life-and-ip/comment-page-1/#comment-790335

Which you also ignored. Which is why you are a waste of my time.

Peter Surda June 30, 2011 at 11:35 am

Wildberry,

contrary to your claims, I provided a clear address of your points, whereas you did not provide a clear address of my points. Instead you live in your imaginary world disconnected from everyone else and essentially talk to yourself. The very references you provide prove you wrong.

Let us summarise the claims you make in the references you provide:

The sale is not “invalid”, it is voidable.

I refuted that both right below the quote you pose, but already before you made that argument, here: http://blog.mises.org/17398/intellectual-property-rights-as-negative-servitudes/comment-page-1/#comment-790048

You provide no references for your claims, no coherent structure of them, no solid argumentative connection to the points you are allegedly addressing.

In the second reference, you do not actually provide any arguments, you merely complain about the quality of the debate, while simultaneously failing to answer the questions I posed. This is hypocrisy.

Wildberry June 30, 2011 at 12:53 pm

Peter Surda June 30, 2011 at 11:35 am

Would you mind showing me where this article says this:

Referring to the article you referenced, if Y is not made aware of the promise (easement/servitude/whatever), it means he’s not legally a successor to B. The sale was a fraud.

Peter Surda June 30, 2011 at 3:08 pm

The article does not say this, because it does not handle fraud. Rather, it sets the framework for explaining the legal relationships. I was re-using the terminology and framework from the article to explain my position.

I already provided to you the example with a rock/apple selling business. Please confront that example. Or let’s make the problem even more apparent: someone purchased a gun on the condition that it will be used to shoot Hitler with. Subsequently, without doing anything about Hitler, he sells the gun to me, while neglecting to mention the condition. If your argument was true, it would mean that I am now obligated to shoot Hitler or find someone to do that for me, otherwise I will be subject to the same penalties the original buyer agreed to. Could you make it clear whether you agree with this or not?

Wildberry June 30, 2011 at 4:37 pm

@ Peter Surda June 30, 2011 at 3:08 pm

The article does not say this,

I thought so. Next time you quote an article, eh, quote the article. Otherwise somebody just slightly more stupid than me might not know you were making stuff up.

As to the Hitler example you are trying to construct here, you demonstrate you do not understand the concept of servitudes and “touch and concern”, so I can’t help you.

The short answer is no, I do not agree with this. First it is not an accurate analog to the fact pattern being discussed. Second, you reach a faulty conclusion from faulty construction of your premise concerning how limitations of use “run” with the burdened property.

To understand why, you have to understand how covenants become easements, (of which one type is a servitude) and under what conditions they run with the land. Once you have this straight, you can analyze the discussion on the parallels between this legal doctrine, and IP.

I cannot and am unwilling to try to convey all of this to you by trying to correct the errors you make from your lack of understanding. Nothing personal…

Peter Surda June 30, 2011 at 5:18 pm

Wildberry,

Next time you quote an article, eh, quote the article.

Stop misrepresenting my claims, you fraudster. Let’s see what I actually wrote:

Referring to the article you referenced, if Y is not made aware of the promise (easement/servitude/whatever), it means he’s not legally a successor to B. The sale was a fraud.

First it is not an accurate analog to the fact pattern being discussed.

You have failed to explain what the alleged difference is. Looking at the wikipedia article about easements also does not reveal any magical dust that would make your argument more meaningful.

I cannot and am unwilling to try to convey all of this to you by trying to correct the errors you make from your lack of understanding.

You have not pointed out any errors, merely professed your disagreement. All the parts of a proper argument are missing.

Wildberry June 30, 2011 at 6:15 pm

@Peter Surda June 30, 2011 at 5:18 pm

You have failed to explain what the alleged difference is. Looking at the wikipedia article about easements also does not reveal any magical dust that would make your argument more meaningful.

Oh my. This article defines and describes the legal term “easement”. It does not discuss the transfer of title to property with a burden of equitable servitude, and the consequences and remedies of fraudulent misrepresentation in the conveyance of land. It does not discuss the requirements for a burden or benefit to “run with the land”. It has only an example of trespass against easement, which is not germane to this discussion. It does not discuss a servitude created by the owner of his own property as a condition of sale, but only easements in relation to the relative rights of adjacent parcels created by mutual covenant.

If one could learn all one needed to know from Wikipedia, I guess law schools would be out of business. No wonder you are looking for “magical dust”.

You at least have to have a grasp of the fundamentals. Otherwise it is too much to ask for me to give you a complete education on the subject just because you are speaking from ignorance.

Nothing personal…I mean that in a good way.

Peter Surda July 1, 2011 at 4:05 am

Wildberry,

This article defines and describes the legal term “easement”.

You said previuosly:

To understand why, you have to understand how covenants become easements, (of which one type is a servitude) and under what conditions they run with the land. Once you have this straight, you can analyze the discussion on the parallels between this legal doctrine, and IP.

The article explains exactly what you allege I do no comprehend. But you can’t have a logical argument flow, can you? You need to switch to a different issue, never finishing any coherent claim.

It does not discuss the requirements for a burden or benefit to “run with the land”.

This is correct, but as I explained previously, irrelevant. The question is whether contractual obligations can bind someone who did not agree to them. I have provided a coherent explanation that refutes this. You admit at least that there are situations where a contractual obligation does not bind a third party. So, it is up to you to explain how to distinguish between these two types of obligations, the ones that propagate to third parties and the ones that do not.

Furthermore, if you stay on the wiki a bit longer and look at Covenants run with the land, you will notice that one of the conditions is:

A subsequent owner must have had actual notice, inquiry notice, or constructive notice (record) of the covenant at the time of purchase.

This condition is not fulfilled in the case of a fraud. Whether this now means, as I claim, that the sale never occurred, or merely that the third party is not bound by the covenant, is irrelevant, since in both cases the third party has no contractual obligations, which is what you were denying in the first place. The point is that you don’t have an argument. You were trying to prove that a contractual obligation can bind a third party, but utterly fail to provide any example where this is the case.

You at least have to have a grasp of the fundamentals.

Exactly. The fundamentals are that a conditional transfer of title has, per se, nothing to do with an object of a sale. They are two separate arrangements, as I explained already several times, because they can occur independently of each other. Neither of them are a necessary condition for the other. Easements are examples of such conditional transfers (i.e. they are a subset of conditional transfers of title), merely these two arrangements (condition and sale) occur at approximately the same time and may be the covered by only one document. But by their close proximity they do not gain additional features, we just use a different name to refer to it in order to simplify communication. By arbitrarily merging them into one, you are committing the same logical error with easements as with IP.

Wildberry July 1, 2011 at 11:04 am

@Peter Surda July 1, 2011 at 4:05 am
Peter said: (emphasis added)

You said previuosly:

To understand why, you have to understand how covenants become easements, (of which one type is a servitude) and under what conditions they run with the land. Once you have this straight, you can analyze the discussion on the parallels between this legal doctrine, and IP.

The article explains exactly what you allege I do no comprehend. But you can’t have a logical argument flow, can you? You need to switch to a different issue, never finishing any coherent claim.

My claim is that a Wikipedia article on easements is not sufficient to give you what you would need, although my post to Kid would have, which you didn’t read. That was my claim and it seems pretty coherent. Since I also say:

It does not discuss the requirements for a burden or benefit to “run with the land”.

Now you say:

This is correct, but as I explained previously, irrelevant. The question is whether contractual obligations can bind someone who did not agree to them.

Yes Grasshopper, that is what “runs with the land” means. An easement or servitude “runs” as a property interest, and therefore binds all who acquire the property, as a property interest attached to the title of land. That is the, uh what’s the word…? POINT!

I have provided a coherent explanation that refutes this.

Of course you have not. There is nothing to refute, as it is simply a description of positive law.

You admit at least that there are situations where a contractual obligation does not bind a third party. So, it is up to you to explain how to distinguish between these two types of obligations, the ones that propagate to third parties and the ones that do not.

Mr. Surda, you did not read my post and you have not informed yourself in any other way. Yet you continue to insist that you have “refuted” my argument, while you admit, perhaps inadvertently, that you don’t understand how a covenant becomes an easement or servitude, and what remedies are available to the parties involved.

Furthermore, if you stay on the wiki a bit longer and look at Covenants run with the land, you will notice that one of the conditions is:

A subsequent owner must have had actual notice, inquiry notice, or constructive notice (record) of the covenant at the time of purchase.

As if to make my point for me, you illustrate that you don’t understand the distinction between a covenant, which is a contract, and an easement, which is a property interest. That is a rather important distinction.

Covenants are enforceable only if there is privity, and do not create a property interest in the land. The rules of contract law apply. A servitude does not require privity, but requires notice, and the burden much “TOUCH AND CONCERN” the land.

This was discussed also, but then you would have to read what I posted or study up on your own. You don’t seem to feel any obligation to do either, yet complain that I present no coherent argument?

You also do not understand remedies. If a beneficiary of a servitude wants money damages, he seeks to enforce the promise as a covenant, and the laws of contract prevail. If she want an injunction or a lien, the remedy is equitable and she must prove the existence of an equitable servitude.

You do not understand the concept of constructive notice, or implied notice, upon which the issue turns as to what remedies are available. For example, constructive notice of a servitude may be inferred from the General Plan, or from a recorded title, in which case the successor to the promissor is estopped from claiming lack of notice.

So your analysis here is fundamentally flawed, and you reach the wrong conclusions, as I have already explained here:

http://blog.mises.org/17345/stallman-an-internet-connectivity-tax-to-compensate-artists-and-authors/comment-page-1/#comment-790270

To summarize, if the complaining party is the beneficiary of the burden, and wishes money damages, the cause of action is enforcement of a covenant. Otherwise, the remedy is in equity, in which case it is proven as a servitude.

If the complaining party is owner of the burdened estate, (i.e. fraud for lack of notice upon sale) he must successfully prove that there was no way to receive notice; failure for the seller to disclose is not sufficient, as constructive notice can be proven. This is the theory that applies to the analogy to IP.

If notice is proven, then he may try to terminate the burden as a defense to enforcement in equity, by estoppel, relative hardship, change of condition, abandonment, etc.

If he fails to do so, then the burden is enforced, and he must seek remedy at law under contracts for breach of warranty of good title, or something along those lines. One remedy is rescission, but that is not the only possibility. Do you see? The buyer may seek money damages from the seller and still retain title to the land and the burden. So the sale is NOT void.

Having said all of that, the question remains as to whether any of this is analogous to IP.

To show it is, one must argue that when an author sells a book with a servitude that limits the use by prohibiting copying, for example, both notice and “touch and concern” must be proven. Privity is not required.

Assuming the author has established a “do not copy” servitude on a copy of a book, and the buyer acquires it through proper means (bought it, for example), the question is, does the buyer have notice? Can he argue that he was unaware of the burden?

I have argued thus: 1) he MUST know he is not the author; and 2) he MUST know of the existence of copyrights law (we presume, reasonably, that drivers are aware of the existence of speeding laws; i.e. “ignorance of law is no excuse” are you or anyone you know completely unaware of the existence of copyright law?).

Therefore, the buyer cannot successfully argue that he was not on notice of the burden.

I have explained why such a burden on a book “touches and concerns” the book here:

http://blog.mises.org/17398/intellectual-property-rights-as-negative-servitudes/comment-page-1/#comment-790144

Therefore the servitude would run and be enforceable under the rules of property law for equitable servitudes, as well as under contracts as a real covenant. Since all servitudes are also covenants (but not all covenants are servitudes), then the author may seek both equitable and legal damages; injunctions to cease and desist, AND money damages.

To illustrate your total lack of grasp of the legal principles here, you go from this discussion to the following conclusion about the fundamentals of this argument?

The fundamentals are that a conditional transfer of title has, per se, nothing to do with an object of a sale.

Assuming the “object of sale” is either land or a book, how do you come to the conclusion that a servitude burdening those objects have nothing to do with the object itself?

Is it because you are confusing this with the earlier discussion about conditions precedent in contracts theory? (You were also wrong about that.)

As for the rest, I am incapable of sorting out all or your misconceptions, misunderstandings, faulty premises and non-sequiturs. In addition, you refuse to use terms consistent with the discussion at hand, so I have no idea what you mean.

And that, in considerable detail, is why you are a waste of time.

Peter Surda July 1, 2011 at 12:22 pm

Wildberry,

you did not address almost anything I said. I claimed that contractual restrictions do not bind third parties that did not agree to them. I challenged you to provide counterexample, which you did not. You only assert several unsubstantiated claims for which you provide no references. The only thing that is interesting to me is the connection to IP:

If the complaining party is owner of the burdened estate, (i.e. fraud for lack of notice upon sale) he must successfully prove that there was no way to receive notice; failure for the seller to disclose is not sufficient, as constructive notice can be proven. This is the theory that applies to the analogy to IP.

The analogy would be present if the defraudee obtained the book that the defrauder purchased from the author. But he does not, he obtains a copy. We’re now back to the problem of causality. The copy is not the same object as the original. So your whole effort to show how easements “run with the land” in no way helps you to establish the equivalence of IP.

I have explained why such a burden on a book “touches and concerns” the book here:

Let us then take a look at what you said:

In the case you are creating, a photograph is a copy of the drawing but not a copy of the land. That is the critical distinction. A copy of the drawing has the same utility of use as the drawing itself, but the “copy” of the land does not.

After months of wriggling, you manage to formulate another condition: utility. Funny thing that I made the same argument long before that, such as here:
http://blog.mises.org/14287/innovation-as-an-act-of-love/#comment-732558

So, we can finally continue. Let me ask you these questions: is the combination of causality and utility a sufficient condition for the claim of a property rights violation? Since utility is subjective and only discernible a posteriori, who’s utility at what time is relevant for the assessment whether a violation of rights is present or not? Furthermore, why is the concept of utility in any way relevant for the issue at hand, i.e. what does utility have to do with rights? Furthermore, there are situations that are treated as IP infringements, even though the overlap of utility is missing, how do these fit into your theory? For example, a lot of derivative works, such as sequels, are complements rather than substitutes. I’m not even mentioning hyperlinks. On the other hand, there are situations where an overlap of utility is present, but there is no infringement. For example, all competition that is not covered by IP laws falls into this category. So how do these fit into your theory?

Also, you right after the quote say:

Therefore you can see that the drawing photo “touches and concerns” the benefit of owning a drawing, and controlling exclusively it’s possession and use.

This is a complete non sequitur. Why is the same utility relevant for this in any way? The argument about “benefits” can be said of any utility that the copier derives from the picture, even if it is a different kind of utility that is being derived from the object being photographed. What you write makes no sense.

An owner of a drawing would be interested securing his interests in copies, because they have the same utility as the original.

The alleged causal relationship is faulty. Whether the utility is the same or different is irrelevant from this perspective. As long as there is some kind of utility, it makes sense to make arrangements that you are the one benefiting from the utility. This has nothing to do with IP.

For intellectual products, the means are always attached to the good, and cannot be transferred without also transferring the means to copy. That is in essence the purpose of the specialized property rules of copyrights.

This does not actually explain anything. That books are more easily copy-able than cars is not some inherent property of the books. It is a just curious empirical datum. As our technology progresses, more and more objects will be copiable. Why should this be relevant from point of view of property rights in any way? Does the status of technological development rearrange property rights?

A covenant that says “this land may not be photographed” would not run, while “this drawing may not be photographed” would, because it affects, or touches and concerns the economic interests of the thing itself.

Even if this would be true, it still would only affect people who either trespass/steal the land/photograph, or purchase it. It does not affect people who didn’t do either. Since taking a photograph of a drawing does not require trespassing, theft, or purchase of the drawing, the core problem remains: it is possible to obtain a copy against the author’s wishes without violating the author’s property rights. In order for that to be illegal, you need to invent new rights.

The owner of a drawing is not likely to grant the benefit of copying to a buyer cheaply, since once done, he has lost control of his private means of production.

This is an oft refuted and repeated lie of you, Wildberry. You use loaded words in a biased manner to evocate the impression that there is something fishy going on. Indeed, there is: your fraud is going on. The owner of the drawing has exactly the same control of his private means of production as before, however he is facing more competition. But competition is a phenomenon external to the owner. There is no logical necessity to equivocate the two.

Therefore it touches and concerns the property itself, and runs with the property, and becomes a servitude.

This still utterly fails to address the question why such a servitude should affect copies too. Copies are distinct objects from the originals, so there is neither a legal nor a logical reason why a servitude that is created for one applies to the other, especially in cases when they are owned by different people.

Without securing property rights in intellectual works, the producers would be producing for external economies, because they will have lost control of their private means of production.

Again, a lie thousand times refuted. You erroneously present the decisions of authors and inventors as “all or nothing”, and something that other kinds of producers never have to face. The fact is, both groups produce some internal benefits and some external ones. Trying to present the problems authors and inventors face as economically unique is at best an oversight and at worst outright lie. Since I have already explained this to you several times, it’s more of a lie on your part.

Assuming the “object of sale” is either land or a book, how do you come to the conclusion that a servitude burdening those objects have nothing to do with the object itself?

I already explained it several times over. The fact that neither of them is logically nor legally a necessary requirement for the other one means that they are two distinct phenomena and treating them as a single unit is a flawed methodology.

And that, in considerable detail, is why you are a waste of time.

I regularly provide point by point refutations of your claims. You wriggle like a spider on a hot pan and for months fail to answer simple questions. You’re a fraud and a liar.

Kid Salami July 2, 2011 at 8:53 am

Peter

You say:

I hereby confirm that according to me, they have no purpose, they are merely a specific instance of more generic concepts, i.e. property rights and contracts.

Ok. But you accept that

The difference between a license and easement is this: a license is a right in contract only, while an easement is not only a right in contract but also an interest in real property.

yes? This appears to be a fact. But you are saying that this is just a particular combination of already existing mechanisms and adds nothing? Ok.

Regarding this, Kinsella says:

Your argument here seems to be that if A sells an object to B, burdened by an easement, then third parties C, D, etc., are somehow bound by this easement. This may be true in the case of a resale of the particular object by B to C; if B does not fully own the object, but in effect co-owns it with A, then C is now a co-owner wtih A and his use-rights over the object are limited to what rights B could transfer to him.

Do you agree with kinsella’s notion of “co-ownership”?

If so, I say that claiming that easements don’t add anything is fine as far as it goes – but then we just have a new concept of “co-ownership” that needs to be resolved. Firstly, I might ask, why do we need this idea at all? Single point ownership will “work” fine. And I don’t remember seeing the bit where the idea of joint ownership of items is integrated into the homesteading and NAP writings of Kinsella or Hoppe or whatever. Can anyone point it out? Remember the phrase with which I started this whole discussion, where Kinsella said

You can say they have homesteaded at least that use of the propety.

This just comes from the clear blue sky – you can homestead “uses” of things? Don’t many of the problems often brought up against IP apply to these two notions eg. lack of clarity? The title transfer theory of contract presupposes property rights, so I find it hard to see an agreement and dispute resolution mechanism between two co-owners that is not circular. How do two co-owners of an object resolve disputes about whether B is, say, genuinely using A’s land as a right of way just to get to C’s land or is in fact going much further than he “should”?

One might phrase the problem with it in words like this:

The reason fraud is a rights violation is it is a means of committing a type of theft or maybe “conversion”–using someone’s property without their consent. It primarily refers to exchanges of title. So the title to my gold coin transfers to the apple seller ONLY if the seller is not knowingly defrauding me as to their quality. This is a condition to the coin title transferring. IF the condition isn’t filled, the title doesn’t trasnfer, so the seller is now in possession of my coin. If he doesn’t return it, he’s trespassing. I am not sure if this could apply as well in the case of personal interaction or services.

I am not sure either. I’m not sure of this idea that “fraud is a means of committing a type of theft……using someone’s property without their consent” can be applied to one co-owner being defrauded by another co-owner either. By the way, these are Kinsella’s words from here.

http://blog.mises.org/8329/trademarks-aint-so-hot-either/#comment-405875

I’m afraid I remain unconvinved by this latest twist and would like to know the principles on which disputes between co-owners are resolved or, alternatively, why this isn’t an issue.

Peter Surda July 2, 2011 at 9:32 am

Kid Salami,

This appears to be a fact.

It’s possible that I missed some peculiarity of the problems of easements, but in my opinion that still changes nothing. If a buyer is not aware of a restriction, he’s not bound by it. If he violates it, he’s trespassing rather than violating a restriction (because the sale is invalid), but the one liable for damages is the fraudster rather than the defrauded person.

Do you agree with kinsella’s notion of “co-ownership”?

I would need more time analysing it. It sounds fishy.

This just comes from the clear blue sky – you can homestead “uses” of things? Don’t many of the problems often brought up against IP apply to these two notions eg. lack of clarity?

I agree with you. But I think it is possible to argue that co-homesteading can occur if the two contestants agree that they own different uses of the property. For example, I use a path, but someone else comes later and wants to use the land around it. So we make an agreement that we both own the land together, and each of us can make specific uses of the resource without the other one having to approve it at individual instances. In order to sell it then, both must agree to the sale.

I am not so sure if co-homesteading can occur without an explicit agreement.

I’m not sure of this idea that “fraud is a means of committing a type of theft……using someone’s property without their consent” can be applied to one co-owner being defrauded by another co-owner either.

If there is co-ownership, then in my opinion it logically follows that a sale requires the agreement of both co-owners. That’s what the “co-” means.

I’m afraid I remain unconvinved by this latest twist and would like to know the principles on which disputes between co-owners are resolved or, alternatively, why this isn’t an issue.

Yes, co-ownership creates problems. I’m not so sure about the conclusions in general, but at least I believe to have successfully argued that in some cases, the legal status coincides with the “traditional” homesteading/contracts. So even if it was a problem, it would not always be a problem.

Kid Salami July 3, 2011 at 4:08 pm

It’s possible that I missed some peculiarity of the problems of easements

This would indeed be unfortunate given that you’ve been discussing them for 2 weeks.

but in my opinion that still changes nothing. If a buyer is not aware of a restriction, he’s not bound by it. If he violates it, he’s trespassing rather than violating a restriction (because the sale is invalid), but the one liable for damages is the fraudster rather than the defrauded person.

I’ve heard this a number of times, it doesn’t explain anything.

Let me try again – it is my opinion that the dominant estate of a servitude can, by way of the real property interest in the servient land given to him according to current law, act in a manner which would be aggression if we only considered “normal” contracts and property rights in the event that the title of the servient estate changes hands without disclosure of the servitude. I’m looking for either: an explanation of how his acts can always be demonstrated as non-aggression using “normal” contracts and property rights; or a confirmation that you think the current law is incompatible with your theory.

I would need more time analysing it. It sounds fishy.

On this we agree.

But I think it is possible to argue that co-homesteading can occur if the two contestants agree that they own different uses of the property.

What? You just said “own different USES of the property”. This is so far from your previous arguments that I don’t see the point in going on – this is not a statement which is a result of the systematic application of some basic principles, it is just ad-hoc pulled-from-thin-air nonsense. Since when is anyone allowed to use the word “own” around here with regard to something non-tangible? Now the individual “uses” of an item are alienable?

I believe to have successfully argued that in some cases, the legal status coincides with the “traditional” homesteading/contracts. So even if it was a problem, it would not always be a problem.

That last sentence sounds a bit “empirical” to me.

Peter Surda July 4, 2011 at 5:09 am

Kid Salami,

This would indeed be unfortunate given that you’ve been discussing them for 2 weeks.

I’m not really interested in this as I see no way how it influences anything important. It just shifts some property rights between a claimant (e.g. author) and fraudster (e.g. contract violating copier). The effect on a third party is zero, exactly the same as before.

… in the event that the title of the servient estate changes hands without disclosure of the servitude …

But there is still at least an attempt to enter into a contract and a transfer of title. An invalid or confusing maybe, but still you have a voluntary actions of two people, and at least one of them thinks he’s entering into a contract and trading a good. There is still no relevance to IP, since this is not what happens. IP infringers do not typically buy a good that has a misrepresented legal background traceable to the author. It is only traceable through causality, but not through trades or contracts. It is, theoretically, possible for acts to happen in a way envisioned by “servitude-based IP proponents”, but usually they do not. So the whole elaborate attempt fails.

I’m looking for either: an explanation of how his acts can always be demonstrated as non-aggression using “normal” contracts and property rights; or a confirmation that you think the current law is incompatible with your theory.

I do not think that it is always non-aggression, I merely think that it is aggression in cases that are, at least in principle, already covered by other, more generic, fundaments (i.e. homesteading/trades/conditional title transfers). So it has no particular effect that I should spend my time on. I am not sure if the current law is compatible with my theory.

You just said “own different USES of the property”.

I apologise, this is due to a lack of precise terminology in this area. I think it’s better to use descriptive language: both contestants own the object together. Meaning that they both need to agree on any use of either of them. They can, in advance, make agreements that specific uses would not require further approvals. This is what the “own different uses of property” means.

It is just ad-hoc pulled-from-thin-air nonsense.

I am afraid confusing terminology is the cause of this. If you want, you can implement the “co-ownership” from a prototype. Person A homesteads the good, and makes an agreement with person B that if one of them uses it in a way the other one disapproves of, the ownership of the good would be transferred to a third party, C (we’ll call him the uber-arbitrator). While this is not an exact match, it is a good-enough practical example of reaching the same result.

As I said, I’m not a big fan of “co-ownership”.

Wildberry July 4, 2011 at 11:25 pm

Surda,

Unless you can show why the general case is false, you cannot simply construct some special case that has not been examined to make your case.

“Utility” goes to “touch and concern”, wich goest to “servitude”. It just seems “elaborate” to you because you either do not understand it or you want to ignore it because it is “elaborate”. That is not an argument.

You admit sas much when you say “I am not sure if the current law is incompatible with my theory”. If you are not sure, why are you so opinionatated?

You also confirm Kid’s understanding of your use of “co-ownership”. Co-ownership requires joint consent for transfer of title. This is not based on any theory of property that I’m aware of. Transfered title to property rights does not create “co-ownership”. What are you talkiing about?

Peter Surda July 5, 2011 at 3:05 am

Wildberry,

Unless you can show why the general case is false, you cannot simply construct some special case that has not been examined to make your case.

I don’t see how this connects to my claims.

“Utility” goes to “touch and concern”, wich goest to “servitude”. It just seems “elaborate” to you because you either do not understand it or you want to ignore it because it is “elaborate”. That is not an argument.

Utility alone does not go to “touch and concern”, and “touch and concern” alone alone does not go to servitude. You are jumping over the gaps in your argument, and your reasoning is also backwards with respect to how servitudes work.

If you are not sure, why are you so opinionatated?

I already explained it several times. Servitudes do not jump to different objects, rather they are transferred with the same object to new owners. So your whole attempt to formulate an analogy with IP is pointless. Even if there would be servitudes on the original, you would still need to show how they are transferred from the original to the copy unless one purchases the original or violates the original owners’ rights. So your attempt to prove an analogy requires that you already assume that copying is somehow relevant for property rights in the first place, thereby making your argument circular.

Co-ownership requires joint consent for transfer of title. This is not based on any theory of property that I’m aware of.

The question is not whether it is “based” on a theory, but whether it’s compatible with it. I was successful in demonstrating that it is possible to implement a status comparable to co-ownership even if the legal system does not recognise such a status.

Transfered title to property rights does not create “co-ownership”.

Of course it does not, but it can achieve a status that has features similar enough to “co-ownership”, i.e. it prevents the ability to sell without a mutual consent.

Wildberry July 5, 2011 at 12:19 pm

@Peter Surda July 5, 2011 at 3:05 am

I don’t see how this connects to my claims.

Of course you don’t. See my reply about the general case here:

http://blog.mises.org/17345/stallman-an-internet-connectivity-tax-to-compensate-artists-and-authors/comment-page-1/#comment-791328

Utility alone does not go to “touch and concern”, and “touch and concern” alone alone does not go to servitude. You are jumping over the gaps in your argument, and your reasoning is also backwards with respect to how servitudes work.

You fail to explain these gaps or my error in servitudes. Empty assertions.

Servitudes do not jump to different objects, rather they are transferred with the same object to new owners.

Yes, this is correct for the general case we are discussing. This case assumes all copies are derivative of the original; directly.

Even if there would be servitudes on the original, you would still need to show how they are transferred from the original to the copy unless one purchases the original or violates the original owners’ rights.

Do you have ADD? Each copy is derived from the original. Each copy carries it’s own servitude, just like the original. The only way to acquire a copy of the original to copy from is with a limitation against copying. In this case, what is your objection, for the tenth time?

The question is not whether it is “based” on a theory, but whether it’s compatible with it. I was successful in demonstrating that it is possible to implement a status comparable to co-ownership even if the legal system does not recognise such a status.

Do you have a theory for how this “co-ownership” you assert, arises? If you do, I’d love to hear it. FYI, the legal system does recognize such a status, but how is that relevant here?

I said: Transfered title to property rights does not create “co-ownership”.

Of course it does not

Don’t look now, but that sounds like agreement…

but it can achieve a status that has features similar enough to “co-ownership”, i.e. it prevents the ability to sell without a mutual consent.

Assuming I know what you actually mean to say here, how is this relevant? Do you think a servitutude creates co-ownership? Do you think mutual consent is a factor anywhere in here? If not, why are your raising it, again and again?

I think I’ve wasted more than enough time with you. I’m getting bored.

Peter Surda July 5, 2011 at 12:51 pm

Wildberry,

you continue to avoid confronting of your errors.

Of course you don’t. See my reply about the general case here:

Oh that one. You misleadingly call your example “general case”, although it evidently is more like a fringe case.

You fail to explain these gaps or my error in servitudes.

On the contrary, I explained it explicitly. The servitudes run with the original. They do not, per se, run with copies. They only run with copies in your fringe cases.

Yes, this is correct for the general case we are discussing. This case assumes all copies are derivative of the original; directly.

Now we’re back to you using causality to justify property rights. Confront it finally you coward.

Do you have ADD?

A more likely explanation is that you’re a moron and a fraud.

Each copy is derived from the original.

Each copy is causally related to the original. So, is causality a sufficient condition for a property right claim or not, Fraudberry?

Each copy carries it’s own servitude, just like the original.

No, it does not. This is only true in your fringe case, but not in the general case.

The only way to acquire a copy of the original to copy from is with a limitation against copying.

Wrong. Lie thousand times refuted. Confront your lies.

In this case, what is your objection, for the tenth time?

I explained it several times you fraud. Stop avoiding it and confront it.

Do you have a theory for how this “co-ownership” you assert, arises? If you do, I’d love to hear it. FYI, the legal system does recognize such a status, but how is that relevant here?

Exactly, why? You keep mentioning it, not me. For all I care, the co-ownership could be eliminated. Its presence or absence has no effect on the validity of my claims.

I think I’ve wasted more than enough time with you. I’m getting bored.

Ah yes, this is the part when, after having your lies exposed and running out of smoke and mirrors, you take the upper moral ground and proclaim yourself the victor. Pathetic.

Kid Salami July 2, 2011 at 8:57 am

And while I’m here, Peter you say to Wildberry:

Why is the same utility relevant for this in any way? The argument about “benefits” can be said of any utility that the copier derives from the picture, even if it is a different kind of utility that is being derived from the object being photographed. What you write makes no sense.

I would argue that the only reason for the introduction of co-ownership via the notion of easements is because of “utility”, in some sense. I think this is deceptively complex, but fundamentally land near the sea or a river with little or no direct access elsewhere has no value unless access to and from it is governed by something more concrete than a simple contract with your neighbour, exactly as per the quote above. Seems a waste to just leave it because of its unsecure access – why not all agree to adjust propery rights so that access to it is more secure and we have more land on which to grow food?

If i phrase this scenario as “the idea co-ownership enables people to maintain the value of land which is in an isolated position and which without coownership would not be usable” then this is a decent first approximation, if one that is clumsy and ultimately would probably have to be replaced with better terms as everyone will just down my throat for using the phrase “maintaining value”. Fair enough of course – but this is, broadly, what is really going on.

Or, do you have a better reason why the complicating idea of “co-ownership” should be introduced?

Peter Surda July 2, 2011 at 9:19 am

Kid Salami,

the situation you are describing is merely a curious empirical datum. There is no reason why you could not access an encircled area from above, below, or, in the example of a shore or river by water. Assuming we invent teleportation at some stage, that datum would become even less relevant. The reason why “co-ownership”, as you call it, develops, is not to optimise utility, but because of homesteading and contractual relationships. Now, positivist law sometimes defines rights in a way that do not match the archetypes contracts/homesteading/sale. But the reason for positivist law is not utility optimisation either, rather they are the outcome of political processes.

Furthermore, I believe your argument, assuming we agreed on it, puts you into an opposition of IP, since IP is typically (e.g. in Wildberrie’s claims that I reacted to) based on the claim that the utility of the original and copy is the same, not that there is some utility in the copy. This is an interesting turn of events, since you agree with me and disagree with Wildberry.

Nevertheless, I was just asking a question. I do not agree that utility is a good way of determining property rights, like I wrote in some comment in the last couple of days, because it is subjective and only ascertainable a posteriori.

Or, do you have a better reason why the complicating idea of “co-ownership” should be introduced?

I am not a big fan of the “idea of co-ownership”. But even if I was, I still don’t see how it can be used to bind someone who is not a party to a contract.

Kid Salami July 3, 2011 at 4:05 pm

the situation you are describing is merely a curious empirical datum. There is no reason why you could not access an encircled area from above, below, or, in the example of a shore or river by water. Assuming we invent teleportation at some stage, that datum would become even less relevant……. Nevertheless, I was just asking a question. I do not agree that utility is a good way of determining property rights, like I wrote in some comment in the last couple of days, because it is subjective and only ascertainable a posteriori.

My apologies for not incorporating “teleportation” into my theory. This idea that we should ignore any empirical data seems to be at odds with 1) the real word, and 2) your words a while ago where I said:

You seem to be advocating that property rights are the “efficient” solution rather than something derivable from fundamental givens like the ownership of your own body

And you replied

In a way, you are right, although I would not use the word “efficient”.

So, I think property rights can and have evolved with the “empirical” data. You sometimes think they can, and sometimes think they can’t.

Or if the word is not “efficient”, nor “utility”, how do you describe it then?

The reason why “co-ownership”, as you call it, develops”

What? It has nothing to do with me. The concept of “co-ownership” is something Kinsella pulled from thin air and which I require clarification of before I can accept it or rule it out. If you think it doesn’t make sense then we agree.

is not to optimise utility, but because of homesteading and contractual relationships.

This is just an assertion.

Now, positivist law sometimes defines rights in a way that do not match the archetypes contracts/homesteading/sale. But the reason for positivist law is not utility optimisation either, rather they are the outcome of political processes.

Agreed this is murky but you are still just asserting, and I’d say this is only partially true at best.

Peter Surda July 4, 2011 at 4:46 am

Kid Salami,

Or if the word is not “efficient”, nor “utility”, how do you describe it then?

You are conflating two different questions because they contain the same word. In the current thread, we are (presumably) talking about deriving the property boundaries from the utility a person can derive from such property, i.e. what the utility of a good to a person is. In the previous thread, we were talking about utility of the property system, i.e. the ability to determine which actions are legal and which are not. These are two distinct questions. Someone will probably end up the one being able to “extract utility” legally, while others would not. The clarity of this, rather than the (praxeologically invalid) interpersonal utility comparison should be the determining factor for which is legal and which not.

Agreed this is murky but you are still just asserting, and I’d say this is only partially true at best.

I am merely trying to point out that while I think there is some merit to your argument, it does not really go all the way through.

Wildberry July 4, 2011 at 11:12 pm

For what it’s worth at this point, you miss the point with your “conflation” complaint.

We are discussing whether a limitation on copying “touches and concerns” the original from which the copy is presumably made.

Since you clearly do not understand the concepts being discussed here, you do not understand your own complaint.

Peter Surda July 5, 2011 at 3:11 am

Wildberry,

We are discussing whether a limitation on copying “touches and concerns” the original from which the copy is presumably made.

Exactly. The original.. In order to obtain a copy, you do not need to purchase the original, nor do you need to trespass, steal or violate the original’s owners’ rights in any way. So your whole argument is pointless.

Wildberry July 5, 2011 at 10:53 am

OK, you concede they touch the original, so a servitude on the original is OK with you?

Yet you say that the copies are unaffected?

If I have a manuscript, and I make a copy, I own the copy, right? Why can’t I put the same servitude on that that I burdened the original with? Any reason?

If the only copies a person could acquire was a copy derived from the original in this way, and all copies have a servitude identical to the original, any problem?

If the possessor sold his copy, or made copies from a copy, and sold them to a third party, is that third party bound by the burden on the copies? If not, why not?

Careful now, you are on thin ice.

nate-m July 5, 2011 at 11:08 am

There are ways to obtain copies of a book that do require a direct link between purchaser and seller.

For example: if a book was discarded by the owner and then another person picked up that copy in a park or on the side walk. There is no transfer of title or rights or anything. The copy of the book was abandoned by the purchaser of the book and then was found by another person. There is no way that a ‘servitude’ could survive such a thing.

If all we were concerning ourselves with was a direct transfer from individual to individual of a printed manuscript then there is no reason why anybody would need any sort of copyright rights or enforcement mechanism. It all can be handled through contract law. Any dispute or between the parties that volunteered to be part of this ‘manuscript transferance’ contract would just use the same mechanisms to resolve issues that anybody else entering into a contract for any reason can use.

But that’s just one aspect of copyright. If what you were describing was all it did there wouldn’t be much of a objection: It would simply be redundant, pointless.

But copyright covers such things as broad casted media over the airwaves, images on web pages, software used in software used in software used in services, and a whole host of complex things that end up controlling the actions of people that never engage in a agreement with any of the restrictions that copyright provides.

Peter Surda July 5, 2011 at 11:29 am

Wildberry,

OK, you concede they touch the original, so a servitude on the original is OK with you?

That was my claim from the beginning, you moron. The “touch and concern” is actually completely irrelevant.

Yet you say that the copies are unaffected?

Correct.

If I have a manuscript, and I make a copy, I own the copy, right?

You only own the copy if you owned the material used to make that copy. Read Kinsella.

Why can’t I put the same servitude on that that I burdened the original with? Any reason?

You can only put the servitude on the copy if it the copy is your property.

If the only copies a person could acquire was a copy derived from the original in this way, and all copies have a servitude identical to the original, any problem?

(emphasis added) It is possible to create copies other ways, and that, again, was my argument from the beginning.

Since you err here, further points in your argument are irrelevant.

Wildberry July 5, 2011 at 12:24 pm

You seem to have conceded that you have no objection in the general case, where all copies that are acquired have a servitude. Any further copying from those copies would be prohibited.

That has been the entire point all along. This exchange is an example of how laborious it is to drag you kicking and screaming over your own objections.

Who has the time?

Peter Surda July 5, 2011 at 12:41 pm

Wildberry,

You seem to have conceded that you have no objection in the general case,

I do have an objection. Stop calling it “general case”, since it clearly isn’t.

Any further copying from those copies would be prohibited.

Wrong. Any further copying by (subsequent) owners of the original would be prohibited.

This exchange is an example of how laborious it is to drag you kicking and screaming over your own objections.

This exchange is an example of how you use smoke and mirrors to hide your errors.

Confront your errors you coward.

Wildberry July 5, 2011 at 8:24 pm

@nate-m July 5, 2011 at 11:08 am

There are ways to obtain copies of a book that do require a direct link between purchaser and seller.

Yes I agree. A writes a book, which he owns (the physical manuscript). He makes a copy, and creates a servitude limiting the use to prohibiting copying. He sells it to B with notice of the burden on the title (limitatoin of use). B takes possession of the book. B leaves it on a bench. C picks it up, reads the front coverpage which says, “This possession of this book does not grant the right of reproduction”. He makes a copy and places the one he found back on the bench. C has no privity with either the A or B in contract. Can he be bound?

You say no. Why? I think it is because you will say C has no contract with A or B. But the device of servitude does not require consent, only notice. Is there no concept of easements and servitudes in the land of Ancap? Why not?

But that’s just one aspect of copyright. If what you were describing was all it did there wouldn’t be much of a objection: It would simply be redundant, pointless.

If a servitude is legitimate with your theories of property rights, then it should be legitimate in principle with all property. It is not redundant to contracts because of something rather important that distinguishes the way a servitude operates and the way a contract operates. A servitude creates a property interest that can be enforced without being a party to an explicit contract. That means an author of a book could disclose it without having to negotiate with everyone who is likely to acquire a copy. Don’t you think that would be important? So why would you deny the legitimacy of the concept of servitude in IP (books) but not in other property?

But copyright covers such things as broad casted media over the airwaves, images on web pages, software used in software used in software used in services, and a whole host of complex things that end up controlling the actions of people that never engage in a agreement with any of the restrictions that copyright provides.

As I have been trying to explain to Surda and Kinsella, these examples illustrate various ways to interpret the act of “copying”. That is beyond the scope of this discussion. I am simply addressing the objection that copyrights cannot be enforced because a third party has no privity with the parties to an explicit contract. I am responding to Kinsella’s assertion that IP cannot be created by contract.

If you accept the concept of seritude, then I think you also have to accept that it can.

So if you accept the operation of servitudes applies equally to books as to land, then we can move on. If not, then you nee to show why we can’t move on by explaining why a principle applies to a set of circumstances when the relate to land, but deny the same circumstances when it applies to a book, or any other movable property.

Wildberry July 4, 2011 at 2:37 pm

@Stephan Kinsella July 3, 2011 at 11:12 pm

Wildberry: “Is it possible to own property and not own the economic interests to it?”

I am not even sure what this means. It is incoherent. What is an interest? how can you own it? To own is to have the legal right to exclude others from using a scarce resource. See http://www.stephankinsella.com/2011/06/hoppe-on-property-rights-in-physical-integrity-vs-value

Well, thanks for asking. I do NOT mean that the value we create is the property interest.

I am simply responding to Peter that his assertion that a servitude has nothing to do with property ownership.

The economic rights to a tangible resource are simply a consequence of owning that resource. Exclusive use extends to uses within the meaning of catallactics. You have a right to exclude others from “trespass”, or the more proper term for movable goods, from conversion of your privately owned resources.
@Peter Surda July 4, 2011 at 3:57 am

I explained it e.g. here: http://blog.mises.org/17345/stallman-an-internet-connectivity-tax-to-compensate-artists-and-authors/comment-page-1/#comment-790745

You made this assertion there:

The fact that neither of them is logically nor legally a necessary requirement for the other one means that they are two distinct phenomena and treating them as a single unit is a flawed methodology.

But you failed to explain why you think they are separate “units”. See my response to Kinsella, and let me know what you think is an error.

You erroneously present the decisions of authors and inventors as “all or nothing”, and something that other kinds of producers never have to face. The fact is, both groups produce some internal benefits and some external ones. Trying to present the problems authors and inventors face as economically unique is at best an oversight and at worst outright lie.

Where did I say that? Are those my quotes? It doesn’t look familiar. Especially unfamiliar is that I’m “Trying to present the problems authors and inventors face as economically unique”, as you say. I am saying the exact opposite:

There is nothing unique about the problems between real property rights (land) and IP, save one. Land cannot be copied, chattel can be but only if you re-create the means of production, but with IP, the means of re-production are attached to the good itself. This creates the “unique” property problem. However, this does not make the operation of property rights unique between them.

In fact, the entire focus of this discussion has been the SIMILARITIES, between servitudes in land, and the operation of IP through copyrights.

That books are more easily copy-able than cars is not some inherent property of the books. It is a just curious empirical datum. As our technology progresses, more and more objects will be copiable. Why should this be relevant from point of view of property rights in any way? Does the status of technological development rearrange property rights?

I am saying the opposite, that technological development does NOT rearrange property rights. Are you paying attention? The fact that books are easily and cheaply reproducible with current technology is creating a problem of enforcing the principle of private property. I have repeatedly said that the ease with which something can be reproduced is not relevant to determining the property rights of ownership. Yet opponents argue the opposite; because the copies cannot be “prevented” then that shows that IP is wrong. I disagree, but we are going far afield.

Also here: http://blog.mises.org/17442/how-government-values-life-and-ip/#comment-790050 and here: http://blog.mises.org/16099/ideas-free-and-unfree-a-book-commentary/#comment-768303 :

You mean where you said this:

Shove your lies up your ass Wildberry, noone is interested in them anymore.

Or this:

This is both theoretically and empirically false. Among other things I have been earning money as a programmer my whole career and cannot recall a situation where the income required IP, even in the long years before I became anti-IP.,

Well, I earn my living without IP too, but I don’t have any idea why you think selling your labor is an argument against IP. IP does not establish labor laws. But if you did sell your labor and someone else got your paycheck, what would that make you? Slaves don’t remain slaves voluntarily. You disagree with this? Again, way, way wide of the mark. Can you stick to one line of argument and make your point?

Without IP, the proportion of “external markets” of your output is not 100%, and with IP it is not 0%.

This is so elementary, I’m getting bored. See above; who knows what this means, and why you are saying it? Yes, IP has nothing to do with activity in the market that doesn’t involve IP. I agree.

The question is: what do you mean by economic interests? You do not define it, but make assertions that it exists, and then base your whole argument on it.

I am unaware there is an argument here. See my response to you and Kinsella, linked above. What argument is there in the a priori fact that private ownership of a thing gives you exclusive economic rights to its use? Is that controversial?

You are using vague words again. The way you use “economic interest” in other claims is by equating it to causality, i.e. your property having an effect on others.

This is just another one of your empty assertions. Show me. I have said how I use it in this context. If you want to refer to another context, first show me, but second why change contexts? Can you stick with one argument?

No, you did not. All your claims come back to the argument from causality: that because author created an original, he has a right in copies other people manufactured. But when I ask you explicitly, you start avoiding. The whole argument is a fraud. No amount of smoke and mirrors can hide it.

This is not my argument. If you can show me where I have made such a ridiculous statement, I will correct it for you. If you are making an argument here, it is too subtle for me. I can’t see it.

It’s d, another option: Your argument is vague, and you continuously, for months, refuse to address it. You use causality to “prove” that copying violates rights, but when confronted about it, you avoid it. You’re a coward and a fraud.

And here we are at the end, and as far as I can tell, you haven’t said anything and have simply engaged in a bunch of unsupported assertions and childish name-calling. Is there any wonder why I can’t take you seriously? You contribute little.
@Stephan Kinsella July 4, 2011 at 12:06 am

Nymberry:
I am not replying to all your posts for a few reasons–time; preference; travel; and volume. And the ones I reply to are mainly for the benefit of lurkers, not for you, as you seem beyond the reach of reason. I mean this seriously. It is up to you whether to decide to be honest, sincere and intelligent.

Now that you have established your moral and intellectual superiority and I know who I am supposed to be looking up to, I’m sure the “lurkers” appreciate you being the guardian of Truth and reason on their behalf, since according to you, they could not see or understand for themselves whether something I say is reasonable or not. Why should they, when they can simply look to you to judge that for them? After all, you are the guardian for what is “real libertarianism”, which is why I capitalized it, but thanks for the tip about your party affiliations.

IP means that in some cases the guy who thinks of an invention or creates an original work of art can legally prohibit everyone else from using or reproducing the work/invention without his consent. Right? That is what IP does.

Wrong. IP has as one objective the wide dissemination and use of protected works. It accomplishes this goal by removing the conditions which might otherwise prevent full and free disclosure by securing the rights of private property after such disclosure.

Relative to this discussion, IP operates like all private property, by securing the rights of the legitimate owner to establish the terms of use as a condition of title transfer. A successor in title can acquire more than was conveyed. So if you mean that IP “legally prohibits” prohibited uses, then yes, that is what IP does. If you mean that it does so in ways or with means that contract the operation of property rights in the non-IP context, then no, I strongly disagree.

The private property rights in IP are secured by limiting the rights of use by those who acquire the property under notice of these limitations, similar to the mechanism of servitudes, as you have already conceded. Reproduction for certain purposes is one of the limitations of use.

Just like giving someone permission to “trespass” is a prerogative of the landowner, this limitation may be waived by written consent of the rightful owner. Unless one seeks and receives this consent, s/he is barred from trespass. Unless you seek and obtain a waiver of this limitation, you are barred from copying protected works. In exchange for this, the possessor of the protected property receives the benefit of access to it.

Now, please give a clear example of how use of your “easement” (or whatever other) legal principle can make third parties subject to the legal control of the content/idea creator. WE concede, perhaps arguendo, to you that second-parties (those who contract with the content creator) may be liable or bound somehow by contract.

An easement is a term of art in the context of existing property law. In order to use this term meaningfully, one must assume the a priori existence of “law”, meaning the right to enforcement of rights and violations of those rights.

It is not necessary to assume how or by whom these rights are enforced. It is sufficient to acknowledge a priori that if rights exist, they are enforceable without violating NAP.

The right to enforce an easement (may I presume you understand this term in the context of real property?) is a right derived from the rights of private property ownership. Only the owner of the un-burdened property can consent to burdening his property.

The right to enforce an easement (may I presume you understand this term in the context of real property?) is a right derived from the rights of private property ownership. The doctrine of easements is the legal framework that defines how easements are created, transferred, and enforced. My meaning and use of terms is meant to be consistent with that framework.

Easements, which include negative servitudes, are created by covenant, a form of contract in property law. The creation of an easement requires privity between parties, typically the owners of the dominant and servient estates. In the case of a servitude however, a single owner may create a servitude (limitation of use) that dominates (or more properly burdens) his own property. This limitation also creates benefits to all those who enjoy some benefit from the limitation, which is analogous to the dominate estate in easements involving adjacent parcels.

Once created, the covenant ALSO creates a property interest that attaches to the property. When the property is transferred, the title is encumbered by the limitation of use (or right to use in a positive easement), provided it “touches and concerns” and the successor has “notice”.

This is the meaning of the phrase “running with the land”. If a covenant satisfies these two criteria, successors to any further transfer of title is bound by the limitations of the covenant, which goes by the term of art, “servitude”. Because it is still a covenant, then enforcement against violations of the servitude may be sought in law (money damages) or equity (injunction).

Once the servitude is legally created, there is no further need to prove or require privity between one of the original parties to the covenant and a successor. The successor to the burdened property is bound by operation of law, and the beneficiaries are also entitled to enforce their rights under the “third party beneficiary” theory of contract law.

As you have conceded, there is a parallel between the doctrine of servitudes, and IP.

The a priori assumptions for IP are the same as with real property. We seem to agree that the original manuscript (as defined by “work” in copyright law) is private property. Therefore, like in real property rules, the owner of private property is entitled to unbundle any rights he possesses, and transfer title to less rights, (i.e. a limitation of use, or rights of use) than he possesses. This is universally true for all private property.

I am asserting that every feature that is true and legitimate for private property in land, holds equally true and legitimate for IP. I prefer to stick with the context of copyrights, since as you know, it is problematic to try to make specific analysis with IP except on a general level.

You wave around the idea of “easements” in a vague way to imply that this can also hook third parties but when the rubber hits the road you vamoose. Give a clear example to show how third party C is somehow legally liable to A, because of A’s agreement with B? If not, I don’t intend to continue to bother with you even for the sake of spectators.

An authors fixes his work on paper and we call that a manuscript. Since it is an original work (assuming that it meets the criteria of “protected work” in copyright law, as a definition of “original”), only one copy of it exists.

Borrowing from the doctrine of easements in real property law, the author creates a covenant to modify the title of his property. It is a unilateral contract. It creates a property interest in his manuscript which limits the use of it and all copies derived from it. This limitation is analogous to a servitude. It creates intended third party beneficiaries in all of those who use the property under the terms of use, and gives them a cause of action to assert their fair rights of use; i.e those uses that are not limited by the “servitude”, and burdens the manuscript, and all derivative copies made from it, with limitation of use which duplicate the law of copyrights.

Because the manuscript, and all copies made from it are burdened by a limitation of use through a servitude, it does not require privity between future successors to the property to secure enforceability of these limitations. This is identical to all other servitudes in real property law.

However, as with all servitudes, enforceability DOES depend upon “touch and concern” and “notice”, as discussed above.

Specifically, if a successor to the original manuscript violates the terms of use, and the author brings an enforcement action, the successor must prove that the servitude is void either because the limitation does not “touch or concern” or he did not have “notice”.

I make the “touch and concern” argument here: http://blog.mises.org/17398/intellectual-property-rights-as-negative-servitudes/comment-page-1/#comment-790810

My argument is that yes, a limitation on making copies for certain uses touches and concerns the manuscript because copies cannot be made without the original or copies made from it. Therefore, since it is essential to the author to control the use and distribution of his own private property, it touches and concerns that property because exclusive use is equivalent to ownership of property. All property that is owned gives the owner exclusive rights to benefit from catallactic actions with that property, i.e. property owners have economic rights to their own property.

Regarding notice, I can repeat what I have said elsewhere; every person who acquires an original manuscript or copies derived from it, knows s/he is not the author, and therefore cannot assume rights of use that have not been transferred by the original owner, either directly or by succession. Therefore, such a possessor is estopped from claiming they did not have constructive notice that the work may have limitations of use.

Second, if we assume a priori that enforcement rights exist for ALL owners of private property, and since a non-author cannot own an original work unless he authors it, then likewise, someone who acquires a copy of an original work is aware, or reasonably should be aware, that property rights in original works are secured by the right to enforce against infringement. Therefore, the possessor is estopped from claiming they were “ignorant of the law”.

Finally, if we assume a priori that the doctrine of “ignorance of the law is no defense”, then we would find that lack of awareness of enforceability rights (i.e. copyrights) the defendant would be estopped from claiming ignorance to legal effect.

Therefore, a person who acquires an original manuscript or copies derived from it would be bound by the terms of use specified in the servitude (a form of easement) regardless of his assumed lack of privity with the original author.

• Property rights are limited to scarce and rivalrous goods.

They are not “limited” to it, but that is what they are for.
An author owns his original manuscript, before it is disclosed to anyone else. It exists as his own private property.

We seem to agree on this meaning up to here. Property rights limit the ownership of scarce and rivalrous goods to the legitimate owner.

You continue to equivocate on this. You use manuscript in one sense as an owned physical object (a sheaf of paper with words on it); sometimes as a “work” in the copyright sense, which is a universal, or “ideal object.” Which is it, you intellectual fraud?

I object; assuming facts not in evidence. You have not proven the elements of fraud.

What is the equivocation? The manuscript is an original. Without regard to what it means or what you get out of it by reading it, it is unique. Its uniqueness can by demonstrated in a number of ways, but it is not essential that we debate those various ways. The simple fact is that by definition and assumption, it is original and unique.

For example, we could say that it is a number of sheets of paper with specific patterns printed upon the pages. Whether those patterns are random and meaningless, or have some complex intellectual expression, is not relevant to the property analysis. The combination of those sheets of paper, ink and words represent something unique that is owned by an individual; it is his private property.

Also for simplicity, we can assume that no one can acquire an exact copy of this original without duplicating this pattern (most cost-effectively by photocopying, say) FROM the original or copies made from the original. That is what is meant by a derivative of it, in this context. The original must be the actual cause of the copies. But for the original, the copies could not have been made.

• Property rights are bundled rights which are individually alienable

I don’t know what you mean by this. I refuse to assent to vague formulations that you can use for equivocation later.

If I own a parcel of land (by any means you will accept for acquiring legal ownership of it), I have “Unlimited rights to exclusive use”; like Crusoe, no one else’s rights limit my use. I am subject only to the laws of nature.

If other people share my island, then my rights are “unlimited” (small “u”) only to the extent that my use does not violate the rights of others. (NAP)

This unlimited right of exclusive use is 100% owned by me, up until the time that I convey these rights to another, my successor in title.

Included in this unlimited right of use is my right to use, say, the mineral resources. That right is “bundled” along with all other rights of use I possess. I may “unbundle” the mineral rights, and convey them separately to a successor in title, while retaining the balance of “bundled rights” no so conveyed. That successor can only convey those rights he has acquired, but within that limited right of use, that right is a fully and freely alienable property right, and operates just like any other property right.

In this way, one can say that property rights are “bundles of rights”, and these rights can be distinguished when a specific right is described with sufficient specificity that a title to it can be conveyed to a successor. That successor can only convey those rights he has legally acquired.

Does that clear it up?

• Title to these individual property interests (or “economic rights to property) can be transferred freely by contract.

No, it has nothing to do with “interest” or “economic rights.” It is title to scarce resources that can be transferred by contract (and here we see you beginning to try your sneaky equivocation dishonesty).

Why are you asserting it has no relevance? When I own something, I have an interest in what I own. If I own something, I may act with it in ways described by catallactics. My right to do so is an “economic right” to my interest in my own property. This is my intended meaning of the term. Do you object?

A contract may create a property interest through the operation of the doctrine of easement and servitude”

these are not doctrines; rather they are different words from different legal systems describing the basically same phenomenon — “permitting the transfer of limited title while retaining the benefits of the limitation of use attached to the property title.”

Sure, people can divide up ownership or control rights, whatever linguistic and legal-conceptual labels you apply to it.

That’s what I said. We appear to agree. However, I wonder if by “divide up ownership” if you are introducing what you have called “co-ownership”.

If this is what you mean, then I object to that concept. Again relying on the defined terms of property law, “co-ownership” means joint-tenancy, or tenancy in common, for example, where alienability is limited by consent of the “co-owners”. Here, specified rights of use to property are being conveyed in their entirety, and the conveyee retains no “ownership” of them. Rights of use are freely alienable.

“A servitude is both a covenant enforceable under contract at law, and an equitable servitude enforceable at equity.”

Who konws, who cares. We are not relying on positive law here but trying to discuss legal matters from a libertarian POV and using established legal concepts where useful.

Well, its hard to tell who knows or who cares. You are not entirely consistent in these matters.
In your article here, you seem to rely on the legal doctrines of existing positive law to convey your intended meaning. If I do the same, it is a failure on my part to communicate? You are a lawyer, so it seems reasonable to speak and convey meaning within some framework. I prefer to use the framework of positive law, so we don’t have to reinvent everything from scratch. Where possible and relevant, I try to bridge to the terms you use, and distinguish and contrast meanings. Is that reasonable?

In addition, I am not relying on positive law to make the argument about how the operation of property law is consistent between real property and IP. If you disagree with the analogy on any particular point of meaning, make your case and I’ll respond. It is unreasonable to forbid me from using existing terms and doctrines from existing positive law to convey a specific meaning, when you allow yourself to do the same.

In addition, I am attempting to bridge this meaning of positive law to the terms you use in the context of what you call libertarian principles. I am now making the case that IP can be recreated without violating these principles. You have yet to show me that I have not argued so.

“Servitudes require notice, and must touch and concern the property to run with the burdened property. Limitations which run to not require privity of contract to enforce.”

meh. who cares. this is sidetracking.

I don’t think so. One issue you already raised in this very post is the requirement of privity to bind parties to the terms of use which burden private property. The concept of servitude is an answer to that objection, but for this objection to be valid, I must show that the requirements of enforceability of servitudes (running with the “land” or property) have been met. This requires are “touch and concern” and “notice”. I have provided arguments for why, in the context of copyrights, these requirements have been met. It seems rather relevant.

“The manuscript is the burdened property.

• Any person acquiring a copy of a manuscript knows 1) they are not the author; and 2) of the existence of common social institutions, including the “common practice” of property owners imposing limitations of the use their property, including manuscripts and copies of it.”

here you are equivocating by using “manuscript” in an ambiguous manner. If you mean an owned physical object, then no, not always: for sometimes people acquire informational patterns without using or possessing or “acquiring” the object. If you mean some pattern of information and refer to this as a manuscript that is owned, you are begging the question, which is typical for your ilk.
I think what is common in a free society is that if you reveal information to others by your actions, then you cannot whine if they learn from this information and maybe consult it as a guide to their future actions.

You are the one equivocating, as you have now switched to “ideas are free”, when we are talking about manuscripts as private property, a tangible good. You equivocate “reveal information” with “convey title of limited use to a tangible good”. You equivocate “learn” and “guide” with “limitations of use” which in the copyrights framework, (which we are assuming as a definition of what uses are limited), allows both learning and use for gaining and applying knowledge, say from the acts of reading and understanding what is printed on the paper of a book, as a fair use of a protected (or burdened) good. You know full well this is purposeful ambiguity meant to deceive and distract from the obvious meanings of the words I use here.

As to your restatement of your understanding of what I’ve said, I mean neither, if I understand your objection. I have defined “manuscript” above. I mean an owned physical object. I’ve said that since it is original and unique, all copies of it must be derived from the original. This is the assumption to simplify “acquisition” and “copy”. This original, and all copies derived from it, are collectively the “burdened estate” upon which the servitude attaches.

The pattern which is fixed upon the physical paper is an inseparable part of the physical object that is burdened. If we assume that the pattern cannot be acquired except by copying it from the original (or another copy) I see no way for the copier to avoid being bound.

If you want to argue a special case, where the pattern is transferred intact to some other medium, you must first deal with the general case. In that general case, you must show some way or some reason that the person who acquires the original (or copy) is not bound.

If he is bound in the general case, but not in the special case, then you have to make an argument by supplying the facts that support that assertion.

• Anyone acquiring a copy of a work they did not author is thereby estopped from denying constructive notice of possible limitations on its use.

Doesn’t follow at all since acquiring a “copy” does not imply that the acquirer ever used or “acquired” the original owned object.

I am saying again, as I have just done, that the general case we are discussing assumes that all copies are derived from the original manuscripts; otherwise it is not a “copy”. In that case, what is your objection?

• Since prohibited uses of the work touch and concern the property itself, with notice, the limitations would run with the property.

You seem to be playing lawyer with this repeated trotting out of the “touch and concern” positive law doctrine as if it is relevant to libertarian political ethics. It’s not, and you have not explained it.

I provided a link to my argument above. Here you are being dishonest, since in this article, you said this:

The best way, then, to categorize patent and copyright legally would be to view them as nonapparent negative personal servitudes: a nonapparent charge on a servient estate (that is, the land, personal property, or body of some person) for the benefit of the holder of a patent or copyright, where the charge imposes on the owner of the servient estate the duty to abstain from doing something on or with his property/estate.

By “nonapparent” you seem to be asserting that the lack of notice, one of the “positive law doctrines” relevant to servitudes. The other is “touch and concern”, which I’m sure you recall from your property law class in law school. Otherwise, this is a pretty good summary of my argument.
Of course the central issue here is what makes the operation of this doctrine valid for real property and invalid for IP, in terms of libertarian principles? We are all, lurkers especially, waiting for the answer to this question.

“• A manuscript and copies of it are private property, and limitations of use imposed by servitude are legitimate and enforceable property rights. ”

More nonsense. Copies o something are private proeprty, but of the copier.

Perhaps, but you fail to reveal why, or provide any other arguments in support of this assertion.

I am assuming that all copies are derived from the original, which burdens the original and all derived copies to the limitations of use that burdens the original. That is the general case we are discussing.

How does the copier acquire these unlimited terms of use you claim he has, without the consent of the owner of them? That is a contradiction in your use of private property principles in the context of real property and that of copyrights. I would like to understand your explanation for why this is not the case. I’m sure I am not alone.

Wildberry July 4, 2011 at 2:43 pm

@Stephan Kinsella July 4, 2011 at 12:06 am

Nymberry:
I am not replying to all your posts for a few reasons–time; preference; travel; and volume. And the ones I reply to are mainly for the benefit of lurkers, not for you, as you seem beyond the reach of reason. I mean this seriously. It is up to you whether to decide to be honest, sincere and intelligent.

Now that you have established your moral and intellectual superiority and I know who I am supposed to be looking up to, I’m sure the “lurkers” appreciate you being the guardian of Truth and reason on their behalf, since according to you, they could not see or understand for themselves whether something I say is reasonable or not. Why should they, when they can simply look to you to judge that for them? After all, you are the guardian for what is “real libertarianism”, which is why I capitalized it, but thanks for the tip about your party affiliations.

IP means that in some cases the guy who thinks of an invention or creates an original work of art can legally prohibit everyone else from using or reproducing the work/invention without his consent. Right? That is what IP does.

Wrong. IP has as one objective the wide dissemination and use of protected works. It accomplishes this goal by removing the conditions which might otherwise prevent full and free disclosure by securing the rights of private property after such disclosure.

Relative to this discussion, IP operates like all private property, by securing the rights of the legitimate owner to establish the terms of use as a condition of title transfer. A successor in title can acquire more than was conveyed. So if you mean that IP “legally prohibits” prohibited uses, then yes, that is what IP does. If you mean that it does so in ways or with means that contract the operation of property rights in the non-IP context, then no, I strongly disagree.

The private property rights in IP are secured by limiting the rights of use by those who acquire the property under notice of these limitations, similar to the mechanism of servitudes, as you have already conceded. Reproduction for certain purposes is one of the limitations of use.

Just like giving someone permission to “trespass” is a prerogative of the landowner, this limitation may be waived by written consent of the rightful owner. Unless one seeks and receives this consent, s/he is barred from trespass. Unless you seek and obtain a waiver of this limitation, you are barred from copying protected works. In exchange for this, the possessor of the protected property receives the benefit of access to it.

Now, please give a clear example of how use of your “easement” (or whatever other) legal principle can make third parties subject to the legal control of the content/idea creator. WE concede, perhaps arguendo, to you that second-parties (those who contract with the content creator) may be liable or bound somehow by contract.

An easement is a term of art in the context of existing property law. In order to use this term meaningfully, one must assume the a priori existence of “law”, meaning the right to enforcement of rights and violations of those rights.

It is not necessary to assume how or by whom these rights are enforced. It is sufficient to acknowledge a priori that if rights exist, they are enforceable without violating NAP.

The right to enforce an easement (may I presume you understand this term in the context of real property?) is a right derived from the rights of private property ownership. Only the owner of the un-burdened property can consent to burdening his property.

The right to enforce an easement (may I presume you understand this term in the context of real property?) is a right derived from the rights of private property ownership. The doctrine of easements is the legal framework that defines how easements are created, transferred, and enforced. My meaning and use of terms is meant to be consistent with that framework.

Easements, which include negative servitudes, are created by covenant, a form of contract in property law. The creation of an easement requires privity between parties, typically the owners of the dominant and servient estates. In the case of a servitude however, a single owner may create a servitude (limitation of use) that dominates (or more properly burdens) his own property. This limitation also creates benefits to all those who enjoy some benefit from the limitation, which is analogous to the dominate estate in easements involving adjacent parcels.

Once created, the covenant ALSO creates a property interest that attaches to the property. When the property is transferred, the title is encumbered by the limitation of use (or right to use in a positive easement), provided it “touches and concerns” and the successor has “notice”.

This is the meaning of the phrase “running with the land”. If a covenant satisfies these two criteria, successors to any further transfer of title is bound by the limitations of the covenant, which goes by the term of art, “servitude”. Because it is still a covenant, then enforcement against violations of the servitude may be sought in law (money damages) or equity (injunction).

Once the servitude is legally created, there is no further need to prove or require privity between one of the original parties to the covenant and a successor. The successor to the burdened property is bound by operation of law, and the beneficiaries are also entitled to enforce their rights under the “third party beneficiary” theory of contract law.

As you have conceded, there is a parallel between the doctrine of servitudes, and IP.

The a priori assumptions for IP are the same as with real property. We seem to agree that the original manuscript (as defined by “work” in copyright law) is private property. Therefore, like in real property rules, the owner of private property is entitled to unbundle any rights he possesses, and transfer title to less rights, (i.e. a limitation of use, or rights of use) than he possesses. This is universally true for all private property.

I am asserting that every feature that is true and legitimate for private property in land, holds equally true and legitimate for IP. I prefer to stick with the context of copyrights, since as you know, it is problematic to try to make specific analysis with IP except on a general level.

You wave around the idea of “easements” in a vague way to imply that this can also hook third parties but when the rubber hits the road you vamoose. Give a clear example to show how third party C is somehow legally liable to A, because of A’s agreement with B? If not, I don’t intend to continue to bother with you even for the sake of spectators.

An authors fixes his work on paper and we call that a manuscript. Since it is an original work (assuming that it meets the criteria of “protected work” in copyright law, as a definition of “original”), only one copy of it exists.

Borrowing from the doctrine of easements in real property law, the author creates a covenant to modify the title of his property. It is a unilateral contract. It creates a property interest in his manuscript which limits the use of it and all copies derived from it. This limitation is analogous to a servitude. It creates intended third party beneficiaries in all of those who use the property under the terms of use, and gives them a cause of action to assert their fair rights of use; i.e those uses that are not limited by the “servitude”, and burdens the manuscript, and all derivative copies made from it, with limitation of use which duplicate the law of copyrights.

Because the manuscript, and all copies made from it are burdened by a limitation of use through a servitude, it does not require privity between future successors to the property to secure enforceability of these limitations. This is identical to all other servitudes in real property law.

However, as with all servitudes, enforceability DOES depend upon “touch and concern” and “notice”, as discussed above.

Specifically, if a successor to the original manuscript violates the terms of use, and the author brings an enforcement action, the successor must prove that the servitude is void either because the limitation does not “touch or concern” or he did not have “notice”.

I make the “touch and concern” argument here: http://blog.mises.org/17398/intellectual-property-rights-as-negative-servitudes/comment-page-1/#comment-790810

My argument is that yes, a limitation on making copies for certain uses touches and concerns the manuscript because copies cannot be made without the original or copies made from it. Therefore, since it is essential to the author to control the use and distribution of his own private property, it touches and concerns that property because exclusive use is equivalent to ownership of property. All property that is owned gives the owner exclusive rights to benefit from catallactic actions with that property, i.e. property owners have economic rights to their own property.

Regarding notice, I can repeat what I have said elsewhere; every person who acquires an original manuscript or copies derived from it, knows s/he is not the author, and therefore cannot assume rights of use that have not been transferred by the original owner, either directly or by succession. Therefore, such a possessor is estopped from claiming they did not have constructive notice that the work may have limitations of use.

Second, if we assume a priori that enforcement rights exist for ALL owners of private property, and since a non-author cannot own an original work unless he authors it, then likewise, someone who acquires a copy of an original work is aware, or reasonably should be aware, that property rights in original works are secured by the right to enforce against infringement. Therefore, the possessor is estopped from claiming they were “ignorant of the law”.

Finally, if we assume a priori that the doctrine of “ignorance of the law is no defense”, then we would find that lack of awareness of enforceability rights (i.e. copyrights) the defendant would be estopped from claiming ignorance to legal effect.

Therefore, a person who acquires an original manuscript or copies derived from it would be bound by the terms of use specified in the servitude (a form of easement) regardless of his assumed lack of privity with the original author.

• Property rights are limited to scarce and rivalrous goods.

They are not “limited” to it, but that is what they are for.
An author owns his original manuscript, before it is disclosed to anyone else. It exists as his own private property.

We seem to agree on this meaning up to here. Property rights limit the ownership of scarce and rivalrous goods to the legitimate owner.

You continue to equivocate on this. You use manuscript in one sense as an owned physical object (a sheaf of paper with words on it); sometimes as a “work” in the copyright sense, which is a universal, or “ideal object.” Which is it, you intellectual fraud?

I object; assuming facts not in evidence. You have not proven the elements of fraud.

What is the equivocation? The manuscript is an original. Without regard to what it means or what you get out of it by reading it, it is unique. Its uniqueness can by demonstrated in a number of ways, but it is not essential that we debate those various ways. The simple fact is that by definition and assumption, it is original and unique.

For example, we could say that it is a number of sheets of paper with specific patterns printed upon the pages. Whether those patterns are random and meaningless, or have some complex intellectual expression, is not relevant to the property analysis. The combination of those sheets of paper, ink and words represent something unique that is owned by an individual; it is his private property.

Also for simplicity, we can assume that no one can acquire an exact copy of this original without duplicating this pattern (most cost-effectively by photocopying, say) FROM the original or copies made from the original. That is what is meant by a derivative of it, in this context. The original must be the actual cause of the copies. But for the original, the copies could not have been made.

• Property rights are bundled rights which are individually alienable

I don’t know what you mean by this. I refuse to assent to vague formulations that you can use for equivocation later.

If I own a parcel of land (by any means you will accept for acquiring legal ownership of it), I have “Unlimited rights to exclusive use”; like Crusoe, no one else’s rights limit my use. I am subject only to the laws of nature.

If other people share my island, then my rights are “unlimited” (small “u”) only to the extent that my use does not violate the rights of others. (NAP)

This unlimited right of exclusive use is 100% owned by me, up until the time that I convey these rights to another, my successor in title.

Included in this unlimited right of use is my right to use, say, the mineral resources. That right is “bundled” along with all other rights of use I possess. I may “unbundle” the mineral rights, and convey them separately to a successor in title, while retaining the balance of “bundled rights” no so conveyed. That successor can only convey those rights he has acquired, but within that limited right of use, that right is a fully and freely alienable property right, and operates just like any other property right.

In this way, one can say that property rights are “bundles of rights”, and these rights can be distinguished when a specific right is described with sufficient specificity that a title to it can be conveyed to a successor. That successor can only convey those rights he has legally acquired.

Does that clear it up?

• Title to these individual property interests (or “economic rights to property) can be transferred freely by contract.

No, it has nothing to do with “interest” or “economic rights.” It is title to scarce resources that can be transferred by contract (and here we see you beginning to try your sneaky equivocation dishonesty).

Why are you asserting it has no relevance? When I own something, I have an interest in what I own. If I own something, I may act with it in ways described by catallactics. My right to do so is an “economic right” to my interest in my own property. This is my intended meaning of the term. Do you object?

A contract may create a property interest through the operation of the doctrine of easement and servitude”

these are not doctrines; rather they are different words from different legal systems describing the basically same phenomenon — “permitting the transfer of limited title while retaining the benefits of the limitation of use attached to the property title.”

Sure, people can divide up ownership or control rights, whatever linguistic and legal-conceptual labels you apply to it.

That’s what I said. We appear to agree. However, I wonder if by “divide up ownership” if you are introducing what you have called “co-ownership”.

If this is what you mean, then I object to that concept. Again relying on the defined terms of property law, “co-ownership” means joint-tenancy, or tenancy in common, for example, where alienability is limited by consent of the “co-owners”. Here, specified rights of use to property are being conveyed in their entirety, and the conveyee retains no “ownership” of them. Rights of use are freely alienable.

“A servitude is both a covenant enforceable under contract at law, and an equitable servitude enforceable at equity.”

Who konws, who cares. We are not relying on positive law here but trying to discuss legal matters from a libertarian POV and using established legal concepts where useful.

Well, its hard to tell who knows or who cares. You are not entirely consistent in these matters.
In your article here, you seem to rely on the legal doctrines of existing positive law to convey your intended meaning. If I do the same, it is a failure on my part to communicate? You are a lawyer, so it seems reasonable to speak and convey meaning within some framework. I prefer to use the framework of positive law, so we don’t have to reinvent everything from scratch. Where possible and relevant, I try to bridge to the terms you use, and distinguish and contrast meanings. Is that reasonable?

In addition, I am not relying on positive law to make the argument about how the operation of property law is consistent between real property and IP. If you disagree with the analogy on any particular point of meaning, make your case and I’ll respond. It is unreasonable to forbid me from using existing terms and doctrines from existing positive law to convey a specific meaning, when you allow yourself to do the same.

In addition, I am attempting to bridge this meaning of positive law to the terms you use in the context of what you call libertarian principles. I am now making the case that IP can be recreated without violating these principles. You have yet to show me that I have not argued so.

“Servitudes require notice, and must touch and concern the property to run with the burdened property. Limitations which run to not require privity of contract to enforce.”

meh. who cares. this is sidetracking.

I don’t think so. One issue you already raised in this very post is the requirement of privity to bind parties to the terms of use which burden private property. The concept of servitude is an answer to that objection, but for this objection to be valid, I must show that the requirements of enforceability of servitudes (running with the “land” or property) have been met. This requires are “touch and concern” and “notice”. I have provided arguments for why, in the context of copyrights, these requirements have been met. It seems rather relevant.

“The manuscript is the burdened property.

• Any person acquiring a copy of a manuscript knows 1) they are not the author; and 2) of the existence of common social institutions, including the “common practice” of property owners imposing limitations of the use their property, including manuscripts and copies of it.”

here you are equivocating by using “manuscript” in an ambiguous manner. If you mean an owned physical object, then no, not always: for sometimes people acquire informational patterns without using or possessing or “acquiring” the object. If you mean some pattern of information and refer to this as a manuscript that is owned, you are begging the question, which is typical for your ilk.
I think what is common in a free society is that if you reveal information to others by your actions, then you cannot whine if they learn from this information and maybe consult it as a guide to their future actions.

You are the one equivocating, as you have now switched to “ideas are free”, when we are talking about manuscripts as private property, a tangible good. You equivocate “reveal information” with “convey title of limited use to a tangible good”. You equivocate “learn” and “guide” with “limitations of use” which in the copyrights framework, (which we are assuming as a definition of what uses are limited), allows both learning and use for gaining and applying knowledge, say from the acts of reading and understanding what is printed on the paper of a book, as a fair use of a protected (or burdened) good. You know full well this is purposeful ambiguity meant to deceive and distract from the obvious meanings of the words I use here.

As to your restatement of your understanding of what I’ve said, I mean neither, if I understand your objection. I have defined “manuscript” above. I mean an owned physical object. I’ve said that since it is original and unique, all copies of it must be derived from the original. This is the assumption to simplify “acquisition” and “copy”. This original, and all copies derived from it, are collectively the “burdened estate” upon which the servitude attaches.

The pattern which is fixed upon the physical paper is an inseparable part of the physical object that is burdened. If we assume that the pattern cannot be acquired except by copying it from the original (or another copy) I see no way for the copier to avoid being bound.

If you want to argue a special case, where the pattern is transferred intact to some other medium, you must first deal with the general case. In that general case, you must show some way or some reason that the person who acquires the original (or copy) is not bound.

If he is bound in the general case, but not in the special case, then you have to make an argument by supplying the facts that support that assertion.

• Anyone acquiring a copy of a work they did not author is thereby estopped from denying constructive notice of possible limitations on its use.

Doesn’t follow at all since acquiring a “copy” does not imply that the acquirer ever used or “acquired” the original owned object.

I am saying again, as I have just done, that the general case we are discussing assumes that all copies are derived from the original manuscripts; otherwise it is not a “copy”. In that case, what is your objection?

• Since prohibited uses of the work touch and concern the property itself, with notice, the limitations would run with the property.

You seem to be playing lawyer with this repeated trotting out of the “touch and concern” positive law doctrine as if it is relevant to libertarian political ethics. It’s not, and you have not explained it.

I provided a link to my argument above. Here you are being dishonest, since in this article, you said this:

The best way, then, to categorize patent and copyright legally would be to view them as nonapparent negative personal servitudes: a nonapparent charge on a servient estate (that is, the land, personal property, or body of some person) for the benefit of the holder of a patent or copyright, where the charge imposes on the owner of the servient estate the duty to abstain from doing something on or with his property/estate.

By “nonapparent” you seem to be asserting that the lack of notice, one of the “positive law doctrines” relevant to servitudes. The other is “touch and concern”, which I’m sure you recall from your property law class in law school. Otherwise, this is a pretty good summary of my argument.
Of course the central issue here is what makes the operation of this doctrine valid for real property and invalid for IP, in terms of libertarian principles? We are all, lurkers especially, waiting for the answer to this question.

“• A manuscript and copies of it are private property, and limitations of use imposed by servitude are legitimate and enforceable property rights. ”

More nonsense. Copies o something are private proeprty, but of the copier.

Perhaps, but you fail to reveal why, or provide any other arguments in support of this assertion.

I am assuming that all copies are derived from the original, which burdens the original and all derived copies to the limitations of use that burdens the original. That is the general case we are discussing.

How does the copier acquire these unlimited terms of use you claim he has, without the consent of the owner of them? That is a contradiction in your use of private property principles in the context of real property and that of copyrights. I would like to understand your explanation for why this is not the case. I’m sure I am not alone.

Peter Surda July 5, 2011 at 6:03 am

Wildberry,

IP has as one objective the wide dissemination and use of protected works. It accomplishes this goal by…

So, it’s goal is not to protect property rights, but it has a property rights protection as a byproduct, so to say. First of all, this means that you cannot have property rights as an assumption and thus it invalidates large parts of your claims. Second of all, how do you know that IP actually has the effect that you allege it has? You don’t. It’s an unsubstantiated assumption, and it’s not even a scientific one.

removing the conditions which might otherwise prevent full and free disclosure by securing the rights of private property after such disclosure.

Again the same errors. IP does not secure rights of private property after disclosure, it gives the IP holder rights to other people’s property after disclosure. Furthermore, since IP is limited, both by time and scope, it does not logically follow that it would cause full disclosure compared to the absence of IP. Errors upon errors, bullshit upon bullshit, Wildberry.

IP operates like all private property, by securing the rights of the legitimate owner to establish the terms of use as a condition of title transfer.

No, it does not, because it applies to situations where there is no underlying title transfer, and no trespass either.

The private property rights in IP are secured by limiting the rights of use by those who acquire the property under notice of these limitations,
No, wrong again. It affects people who never acquired the property in the first place. Repeating an error does not eliminate the error.

Just like giving someone permission to “trespass” is a prerogative of the landowner, this limitation may be waived by written consent of the rightful owner.

Unless you assume that copying is somehow equivalent to trespass in the first place (which is what you are supposed to conclude, rather than assume), your argument fails. Circular reasoning again.

As you have conceded, there is a parallel between the doctrine of servitudes, and IP.

Stephan explicitly said that the parallel is only valid within the scope of contracts. Since copying does not require a contract, the analogy stops at the contract.

The a priori assumptions for IP are the same as with real property.

No, they are not. They contradict them, as I have clearly shown several times, and as you have ignored again and again.

We seem to agree that the original manuscript (as defined by “work” in copyright law) is private property.

One of the very few things we agree on.

Therefore, like in real property rules, the owner of private property is entitled to unbundle any rights he possesses, and transfer title to less rights, (i.e. a limitation of use, or rights of use) than he possesses.

Unless you assume that you have a right not to have your property copied, which is what you need to prove rather than assume, the argument fails. Do you have a right as such to not have your property copied, Wildberry? What does it mean?

I am asserting that every feature that is true and legitimate for private property in land, holds equally true and legitimate for IP.

It does not. Rights in object A do not jump to object B merely because there is a causal relationship between these two objects. Other conditions are necessary, such as: occurrence of trespass, an underlying contract, or maybe others too. In the typical case, IP contains neither. Your analogy is again refuted.

An authors fixes his work on paper and we call that a manuscript. Since it is an original work (assuming that it meets the criteria of “protected work” in copyright law, as a definition of “original”), only one copy of it exists.

Now you are inventing new terminology. There is no copy, there is only an original. A copy is an object distinct from the original.

It creates a property interest in his manuscript which limits the use of it and all copies derived from it.

Again, this is only valid if the “property interest” jumps by causality only, without contracts and without property rights violations. This is clearly sometimes not the case. Just like a servitude on land does not jump to other land, merely is transferred to future owners of the land, a “servitude in manuscript” does not jump to copies, merely to future owners of the manuscript.

Because the manuscript, and all copies made from it are burdened by a limitation of use through a servitude

The highlighted part is exactly the one that you fail to prove. You only prove that manuscript is burdened, not that the copies of it are.

Specifically, if a successor to the original manuscript violates the terms of use, and the author brings an enforcement action, the successor must prove that the servitude is void either because the limitation does not “touch or concern” or he did not have “notice”.

(emphasis added). You clearly see that the servitudes only affect successors to the original manuscript, rather than owners of the copies. So your argument fails, again.

My argument is that yes, a limitation on making copies for certain uses touches and concerns the manuscript because copies cannot be made without the original or copies made from it.

Now you yourself confirm that a causal relationship between the original and the copies and the fact that the author “limited” it (= does not like it) is a sufficient condition for your claim of rights violation. Your bullshit has been exposed.

I do not think that further arguments are necessary. Your bullshit has been exposed and I will not let you distract the debate anymore until you admit it our go away.

Wildberry July 6, 2011 at 10:22 am

I think you better let Mr. Kinsella speak for himself. You have things all screwed up.

Peter Surda July 6, 2011 at 11:06 am

On the contrary, you’re the one who’s claims are screwed up. Stephan confirmed just a bit earlier today that I understood him correctly.

Wildberry July 5, 2011 at 3:38 pm

@Stephan Kinsella July 5, 2011 at 11:49 am

If A sells an object he owns–such as a book or mousetrap–to B, and puts some “easement” on it so that B may NOT use it for certain purposes (such as copying it or telling others how it works or using the information he gains from it), then this may be viewed as either a contract between A and B, or that A and B co-own the object.

You didn’t get very far before I had to object. I agree that this agreement forms a contract, or specifically a covenant, but I cannot agree this is co-ownership. The test of co-ownership is whether the property is alienable without consent of all the owners. This is not the case here. What do you mean by “co-ownership” in this context? Forms of co-ownership that I am familiar with are joint tenancy, tenancy in common, etc. What form is this? In any case, servitudes and easements to not create co-ownership. Do you insist they do? On what basis?

It doesn’t really matter for our purposes. The point is that whatever are A and B’s rights *to that scarce object,* this cannot prevent C from doing what he wants with his own property,

It does matter. Yet you say that a covenant binds A&B but not C.

You said this here:
http://blog.mises.org/17398/intellectual-property-rights-as-negative-servitudes/

These legal concepts apply to immovable property or realty such as land, but the essence is that a negative easement gives the owner of one estate the right to force the owner of the servient estate to abstain from doing something. Such property rights are perfectly legitimate if established voluntarily, by convention or agreement (see La. C.C. art. 708). But it obvious that giving someone a negative servitude would be a taking of some of the property rights of the owner of the servient estate–a redistribution of property. If B gets a veto right over how A uses his property, this is legitimate only if A voluntarily agrees to it.

[emphasis added]

This does not accurately describe the operation of a servitude.

First, servitude does not require a servient and dominant estate. Servitudes may simply apply to a single “burdened” estate. An owner may burden his own property. As an analogy to an easement, the burdened estate becomes the “servient estate” and the beneficiary of the burden become the “dominant estate”. But there is in actuality no “dominate estate”.

Second, if the “servient estate” (burdened) is transferred to a successor, what is transferred is the burdened property. No rights are “taken” from the successor. The burdened estate was transferred on condition of the limitations specified in the burden. A successor cannot own what was not transferred.

Third, the logical relationships are contract, covenant, easement, servitude, in that order. All servitudes are created by contract (covenant in real property) but not all covenants are servitudes.

Servitudes have unique properties; like easements, they create a property interest in the servient estate (burdened estate). The owner of property can create a servitude in his own property, for his own benefit, and then transfer that property with that burden encumbering title. That burden represents a retained benefit of what was unlimited ownership. When that property is transferred, that benefit is not transferred, and so there is nothing to “take” from the successor.

Servitudes also run with the land, provided they “touch and concern” and there is “notice”. I assume you agree (as you seem to in your article cited here) that if these criteria are met in a covenant, it creates a servitude which runs with the property, and enforcement does NOT require privity. Correct?

So, if an author creates a copy with his own means from his original manuscript, creates a servitude on this copy, his own private property, and then transfers that property to a successor, that successor having notice of the burden is bound. There is no “escape” for either the author, his successor to the benefit of the burden, or the successor to the property (book), even if he transfers the burdened copy to a third party, because there is no requirement to show privity between this third party and any of the original parties to the covenant. Correct?

The general case I am presenting here is one in which the author creates a legitimate servitude on his own property (copy of his manuscript) that touches and concerns that property, and provides notice to the successor of the burden. In that case, do you agree that the servitude which prevents copying is valid and legitimate? Do you agree that if that successor later conveys that copy to a third party with notice, then that party is bound even though there is no privity? That is all I’m asking at the moment. Yes or no?

even if his actions in using his own property are guided by knowledge C obtained from observing B’s use of the object or from observing the object itself. You have yet to even try to explain how C could possibly be bound. And if he is not, then third parties are not bound by the A-B ownership/contract relationship pertaining to some particular objects, and thus, you cannot get IP created out of such arrangements.

This is not conforming to the general case we are discussing. If you want to discuss the facts you raise here, ( is “observing” equivalent to “copying”) I want know first your treatment of the general case where the servitude is legitimately created, and whether it thus binds a third party under the conditions I’ve described, regardless of privity. Do you agree that under these conditions, both notice and touch and concern are satisfied, and the burden then runs with the property (the copy in this case).

I am not asking about all possible copies and all possible uses. I’m just asking about the general case I’ve described.

(I leave aside here the legal and practical problems even with B being limited: why would B buy something with such restrictions? And how could he agree never to use the information he gains? As I quote Tom Palmer in my Against IP monograph, “The separation and retention of the right to copy from the bundle of rights that we call property is problematic. Could one reserve the right, for example, to remember something? Suppose that I wrote a book and offered it to you to read, but I had retained one right: the right to remember it. Would I be justified in taking you to court if I could prove that you had remembered the name of the lead character in the book?”)

Yes, please leave the discussion of what is and is not the subject matter of copyrights, and the fair use doctrine alone for now. We are discussing the legitimacy of servitudes, where the successor has notice that the limitation exists. In that case, “Such property rights are perfectly legitimate if established voluntarily, by convention or agreement”, is that correct?

Regardless of whether we agree on the principles you employ, your arguments are inconsistent with your own principles of legitimate property rights, as I understand them. I am asking you to pinpoint my error(s).

Nope. As you can see in my Intellectual Property and Libertarianism, the plumbline Rothbardian-Austrian view of property rights leads cleanly and clearly to the anti-IP view.

Obviously I don’t see that. This article is merely mega-argumentation based on constructing a straw man version of IP and then arguing against your own creations. Here, we are discussing a specific correlation between property rights that we both agree are consistent with a Rothbardian property rights framework (land) and the same principles operating in that context NOT being legitimate when applied to IP, specifically copyrights. I am trying to explore that inconsistency with your own principles. You so far have failed to make the distinction clear in the context we are discussing.

To summarize, it appears to me that you accept the doctrine of servitude in relation to real property (land) yet disallow that same doctrine in the case I have presented. You have not made it at all clear why this so.

• Property rights are bundled rights which are individually alienable

This is not uncontroversial; see the memory quote above.

According to you, Palmer refers to the “right to copy” as being problematic. I am not arguing about where the line is drawn between a forbidden act of “copying” and other acts that are not forbidden. In any case, we disagree about that apparently, since you seem to be saying that “remembering” is forbidden, while I would say that is not the case, so it is a straw man argument.

• Title to these individual property interests (or “economic rights to property) can be transferred freely by contract.
• A contract may create a property interest through the operation of the doctrine of easement and servitude, permitting the transfer of limited title while retaining the benefits of the limitation of use attached to the property title.
• A servitude is both a covenant enforceable under contract at law, and an equitable servitude enforceable at equity.

Such positive law distinctions and classificaitons are not relevant here; they just serve to either confuse or cloud the basic libertarian property rights issues, or are an illegitimate appeal to authority.

Use any distinctions or classifications you wish, to object to what I say here. There is no appeal to authority, as I have not asserted that because positive law exists, that it must be legitimate. Under any principle you hold to be true, are any of these statements false? If so, which ones and why?
• Servitudes require notice, and must touch and concern the property to run with the burdened property. Limitations which run to not require privity of contract to enforce.

These are positive law doctrines. You have not demonstrated their relevance, or their compatibility with libertarian property rights.

You are the one that said, “Now the parallels between patent and copyright and negative servitudes should be obvious.”

I am simply asking how obvious, and where to they break down. In your own article you assert that notice does not exist, when you said: “Finally, it is also clear that IP is more like a nonapparent than an apparent servitude since there is no outward sign (on one’s body or property) that one is unable to use it in ways prohibited by the holder of the patent or copyright.”

By “nonapparent”, you mean lacking notice, isn’t that correct? Now you now say that such lack of notice is irrelevant? If so, why did you bring it up?

• The manuscript is the burdened property.
• Any person acquiring a copy of a manuscript knows 1) they are not the author; and 2) of the existence of common social institutions, including the “common practice” of property owners imposing limitations of the use their property, including manuscripts and copies of it.
• Anyone acquiring a copy of a work they did not author is thereby estopped from denying constructive notice of possible limitations on its use.

YOu appear to here be talking about an actual object originally owned by the author, and still subject to a servitude owned by that author (the “copy” of the manuscript–i.e. a physical book).

Yes, of course. I am arguing that the successor to a copy made by the author is transferred with notice of the limitations of use. Therefore the successor is bound. Any subsequent successor would also have, at the least, constructive notice, and is therefore also bound. Servitude is an answer to the “lack of privity” objection

• Since prohibited uses of the work touch and concern the property itself, with notice, the limitations would run with the property.
• A manuscript and copies of it are private property, and limitations of use imposed by servitude are legitimate and enforceable property rights.
• The terms and provisos of these limitations of use may be identical to the positive law of copyrights.
• Enforcing rights which one legitimately holds is not aggression.
• Benefits of a servitude attached to an original manuscript and all copies derived from it are legitimate property interests, and therefore enforcement of these rights is not aggression.

all copies dervied from it? Imagine A sells a house to B and imposes a servitude on it that prohibits B from building a copy of it. But C who lives nearby likes the way B’s house looks so he builds a copy. THe arrangement between A and B cannot prohibit C from doing this. C never agreed to it, and he never used or possessed B’s house.

You are changing the context of the principle to reach the conclusion you want us to reach. I think that is a sleight-of-hand tactic. As you know, the design appearance of a house is not a protected work under copyrights. Perhaps detailed architectural drawings may be.

Stick with the case under discussion. You are quibbling with the range of meaning that can be applied to “copy”. You are creating an equivocation. What constitutes copying is not the issue here, anyway. I have described the very type of copying we are discussing; the reproduction of a work that is burdened with a restriction on that specific use. Sticking to that case, do you have some objection?

So you see, it is possible to recreate IP by contract through the operation a servitude, and not violate even Rothbardian principles of property rights.

It is not at all; you are either stupid or dishonest. You surely know that I do not “see” this, so you are intentionally being dishonest.

I think the pot is calling the kettle black. If you want to be a vanguard of intelligence and honesty, simply answer the questions as I’ve posed them. If I’m really just being stupid, it should be a trivial issue to demonstrate to all the “lurkers” just how and why.

Peter Surda July 5, 2011 at 4:34 pm

Wildberry,

in the whole confusing voluminous prose about nothing, you avoid the single most important issue, the glaring error in your argument: servitudes still only bind people who voluntarily enter into some sort of contract. In all the examples, references, laws and prototypes, the person who is being restricted voluntarily enters into a contract. It does not matter whether there is an underlying sale, whether the restriction is apparent to the buyer or how the law labels it. There is a contract that is being voluntarily entered into. The restriction does not apply to people who did not enter into a contract.

Furthermore, you erroneously claim that the servitude jumps from an original into a copy, because a copy concerns and touch the original. This implication is something you completely made up. Servitudes do not behave like this. Land servitudes do not jump to objects that touch and concern the land. They run with the subsequent owners of the land, not with subsequent owners of the objects that concern and touch the land. Your argument is bullshit.

So the whole analogy of servitudes to IP is non-existent. You literally make up tons of bullshit and then post huge posts trying to obfuscate it.

Wildberry July 5, 2011 at 5:30 pm

Are you following this discussion at all? The operation of contracts and the operation of servitudes are being distinguished and contrasted.

HOW COULD YOU BE MISSING THIS?

Contracts require privity, servitudes do not. So, Why oh Why are you making a contract arguement?

Second, do you actually read my posts that you respond to? Are you capable of comprehending what I write?

Servitudes do not “jump” from one object to another. Each copy, having been made by the author, carries a burden. This copy carries a burden of limitation, and travels with the burdened object. If a possessor of this burdened object makes a copy, which is prohibited by the limitation of use, it is a violation of property rights owned by the author, and is enforceable.

Get it?

Peter Surda July 5, 2011 at 6:36 pm

Wildberry,

The operation of contracts and the operation of servitudes are being distinguished and contrasted.

you dumb idiot. Once again, the servitude is only transferred to people who enter into a contract. The servitude is transferred by entering into the contract. It applies to those that are owners of the land.

It is not transferred to people who do not enter into a contract, i.e. who are not owners of the land, their grandmas, hairdressers, photographers, competitors or anybody else, whether the person creating the servitude likes it or not.

Stop making up nonsense you moron and confront the the enormous pile of crap you have produced.

Each copy, having been made by the author, carries a burden.

Each copy is not made by the author, and even those that are made by him might not be owned by him, for example if he used material belonging to someone else. So no, each copy does not carry a burden. You just made that up and repeat it, although I refuted it again and again.

If a possessor of this burdened object makes a copy,

Non-possessors of a burdened object are quite capable of making a copy too, and thereby refute your bullshit.

Get it?

Lies lies lies you stupid idiot, you lack the ability to produce any coherent argument and deny all the time what you said previously. Moronic fraudster.

Wildberry July 6, 2011 at 10:18 am

@ Peter Surda July 5, 2011 at 6:36 pm

Your behavior is disgraceful.

If a person takes possession of a book with a limitation of use, they take it with the limitation.

They have entered the covenant by operation of servitude. Their consent is implied by the act of possession wtih notice of the limitation.

That is what is required and nothing more.

Get it?

Peter Surda July 6, 2011 at 11:43 am

Wildberry,

Your behavior is disgraceful.

Your behaviour is disgraceful. Your attitude to the debate is not geniuine.

If a person takes possession of a book with a limitation of use, they take it with the limitation.

Only if:
- the taking of possession is preceded/accompanied by some sort of a contract
- the limitation is a subset of property rights in that book

Typically when copying occurs, neither of those conditions are fulfilled.

They have entered the covenant by operation of servitude.

The entrance into covenant is a consequence of an entrance into a contract, such as a sale.

Their consent is implied by the act of possession wtih notice of the limitation.

Wrong, the consent is a consequence of entering into a contract, such as a sale or rent, rather than a consequence of possession.

Wildberry July 6, 2011 at 1:54 pm

@Peter Surda July 6, 2011 at 11:43 am

As you continue to try to argue without informing yourself of the details of the subject matter, you continue to make fundamental errors which reveal the state of righteous ignorance from which you speak.

If a person takes possession of a book with a limitation of use, they take it with the limitation.

You say:

Only if:
- the taking of possession is preceded/accompanied by some sort of a contract
- the limitation is a subset of property rights in that book

The servitude is created by a covenant. It is a unilateral contract that the author makes concerning the conditions of transfer of his own property. This covenant creates a property interest in his property, in the general case we are discussing, a “book”. This property interest is a limitation of the right to make copies of it. Any transfer of this property is a transfer of title with the burden of the limitation on copying.

So, the “property rights in that book” is established, and your second criteria is satisfied.

The author A sells this burdened book to B, who accepts it with the limitation. B leaves it on a bench and walks away. Along comes C, who sees the abandoned book and takes possession of it. Because it is abandoned property, he has legal possession, but has not purchased it.

He does not know A or B and has never spoken to them. He is in possession of the book from B.

He goes home and makes a copy with his own private means. Now he has two identical copies of the book. Has he violated the property rights of either A or B?

If yes, then confirm your understanding of why that is true by explaining it.

If no, then explain why not.

If you are going to explain that it is no, because C has no contract with A or B, then this only demonstrates, once again, that you do not understand what an easement or servitude is. You are talking about oranges when everyone else is talking about apples.

Remember, the burdened object is the book. The property interest is A’s benefit from the limited transfer of his property rights; a book he owned that does not include the right to make copies. He retains the benefit of that right (much like a land owner may retain the mineral rights to a parcel of land he sells) The transfer to B was a book with this limitation of use. The book C found was the same book.

I am waiting with baited breath.

Peter Surda July 6, 2011 at 2:48 pm

Wildberry,

As you continue to try to argue without informing yourself of the details of the subject matter, you continue to make fundamental errors which reveal the state of righteous ignorance from which you speak.

I clearly pointed out the errors in your claims. You present unsubstantiated assumptions, logically incoherent and vague arguments, but most importantly, you ignore your opponents’ arguments. Your attempt to take the higher moral ground has no justification.

The servitude is created by a covenant. It is a unilateral contract that the author makes concerning the conditions of transfer of his own property

(emphasis added). It should be clear even to you that the transfer of his property is hardly the “general case” of IP violation.

Along comes C, who sees the abandoned book and takes possession of it.

The servitude has no effect on C. However, it could very well be that such an act of possession is theft.

Has he violated the property rights of either A or B?

You omit the data necessary to make that conclusion. The servitude as such, however, is irrelevant.

As an analogy, if A and B agree not to shoot at each other, and C shots A, then the agreement A and B had is irrelevant in determining whether C violated A’s rights. The shooting could happen during a robbery or self defense, among other things. These other facts determine whether property rights of A are violated or not. Not the agreement between A and B.

Remember, the burdened object is the book.

Putting it this way is misleading. It would be more accurate to say that subsequent owners of the book are the burdened subjects.

The questions you pose have, in general, nothing to do with servitudes. Using servitudes to determine whether a violation of rights occurred or not in these cases is erroneous.

You’re imagining it as magic. Author casts a curse on the book, and everyone who the book affects becomes cursed. That’s however not how legal systems (neither the encumbent positive one, nor the Hoppean/Kinsellian one) work.

I am waiting with baited breath.

Maybe instead of waiting, you should invest time into fixing all the errors you created.

Wildberry July 6, 2011 at 6:11 pm

@Peter Surda July 6, 2011 at 2:48 pm
Wildberry- “As you continue to try to argue without informing yourself of the details of the subject matter, you continue to make fundamental errors which reveal the state of righteous ignorance from which you speak.”

I clearly pointed out the errors in your claims. You present unsubstantiated assumptions, logically incoherent and vague arguments, but most importantly, you ignore your opponents’ arguments. Your attempt to take the higher moral ground has no justification.

Is this the “Liar, liar, pants on fire” rebuttal again?

“The servitude is created by a covenant. It is a unilateral contract that the author makes concerning the conditions of transfer of his own property”
“(emphasis added). It should be clear even to you that the transfer of his property is hardly the “general case” of IP violation.”
Really? Why not? I have given you the fact pattern. That is why I am calling it the “general case”, because adding facts to it creates a “special case”. See? But if you want to make it clear, why not say what you think the general case of IP violation is? I suspect it will sound kinda funny, given this exchange. Go ahead…I’m ready for enlightenment.

“Along comes C, who sees the abandoned book and takes possession of it.”

The servitude has no effect on C. However, it could very well be that such an act of possession is theft.

After apples and oranges, you now want to talk about pears? How is possessing abandoned property theft? Did I miss something in the Hopean/Kinsellian framework?

“Has he violated the property rights of either A or B?”

You omit the data necessary to make that conclusion. The servitude as such, however, is irrelevant.

You are a worm on a hook, trying to look inconspicuous.

What data? Cm’on, you can do it. Why is it irrelevant? How are we going to establish that the Author has retained a benefit while transferring his property to another? How do you show that he has no property rights in his own property?

As an analogy, if A and B agree not to shoot at each other, and C shots A, then the agreement A and B had is irrelevant in determining whether C violated A’s rights. The shooting could happen during a robbery or self defense, among other things. These other facts determine whether property rights of A are violated or not. Not the agreement between A and B.

To paraphrase, then; If A has rights, and B violates them, the existence of a contract doesn’t matter. Hmmm. Sounds familiar. Give me a minute. Yes, I think I must have read about that somewhere. Yes! You are talking about the existence of PROPETY RIGHTS!

“Remember, the burdened object is the book.”

Putting it this way is misleading. It would be more accurate to say that subsequent owners of the book are the burdened subjects.

Well you could put it that way (it would be wrong) but tell me why you prefer it that way. What purpose do you serve here? What is the distinction you are making? I mean, why is it MORE accurate?

The questions you pose have, in general, nothing to do with servitudes. Using servitudes to determine whether a violation of rights occurred or not in these cases is erroneous.

If this ever dawns on you, the light is going to be blinding. Why is it erroneous, Peter?

Why doesn’t an owner of private property have the right to withhold certain uses of his property as a condition of offer? How is this idea distinguished from the idea of an easement or servitude?

You’re imagining it as magic. Author casts a curse on the book, and everyone who the book affects becomes cursed. That’s however not how legal systems (neither the encumbent positive one, nor the Hoppean/Kinsellian one) work.

You are imagining it as magic, which is why you are merely trying to stick pins in the doll.

The land owner records his title in a public record, documenting the existence of a servitude on his own land. He then sells it with the burdened title. The buyer sells to a third party, who has never met the original land owner, much less entered a contract with him. Is the third party bound by the limitations of the title he acquired?

So now you are going to admonish me about how the existing legal system AND the “Hoppean/Kinsellian one” works by telling me it’s not really a curse? Thank you Batswana!

“I am waiting with baited breath.”

Maybe instead of waiting, you should invest time into fixing all the errors you created.

I’ve just run a 500 mile marathon with you, and I’m hardly breathing hard. Maybe you should go find someone to write software for. You have too much time on your hands.

Stephan Kinsella July 6, 2011 at 7:48 pm

“You’re imagining it as magic. Author casts a curse on the book, and everyone who the book affects becomes cursed. That’s however not how legal systems (neither the encumbent positive one, nor the Hoppean/Kinsellian one) work.”

IP as a curse! I love it!! hahaha Great, Peter.

Peter Surda July 7, 2011 at 6:17 am

Wildberry,

since you avoid addressing my objections, I decided to try the socratic method instead.

So, let’s start with these:

Do people have a right not to have their property copied?

Do servitudes create rights which did not exist prior to the servitude’s creation?

Stephan Kinsella July 6, 2011 at 7:45 pm

“If a person takes possession of a book with a limitation of use, they take it with the limitation.”

So, consider this. Suppose A sells B a book, but “with the limitations”:

1. You may not remember the title of this book.
2. You may not remember the fact that I wrote this book.
3. You may not tell anyone that I wrote this book.

Now B loses the book and years later C finds it. He starts reading it but he does not know tht B had agreed to 1 2 3. Is he “bound” by those conditions? If so, why, or why not?

Wildberry July 7, 2011 at 10:59 am

@ Stephan Kinsella July 6, 2011 at 7:45 pm

I am at a loss, save dishonesty, to explain how you can say this:

I was talking about his trotted out legal mumbo jumbo like “A servitude is both a covenant enforceable under contract at law, and an equitable servitude enforceable at equity.” and also this “touch and concern” stuff.

And then turn around and present a “touch and concern” issue as if you have really discovered something important. You and anyone else reading this who understands anything about actual property law, knows this to be true. Anyone can go onto the internet and look it up. What are you doing and why are you doing it?

Covenants (contracts) can create property interests through easement and servitude. Once created, they are a property interest and do not operate as a contract, but a property interest. You said:

The point is that it’s easy to see that that’s waht they ARE: IP rights ARE negative servitudes imposed on movables.

A servitude, by definition, is a property interest, not a contract. You do not need a contract to prevent trespassing. Why? Because your right to prevent trespassing is a property interest tied to your ownership rights in your property, it is not a contract that requires each person alive to sign the dotted line before they are prevented from trespassing. Property 101. Do you wish to contrast some “libertarian principle” of property rights that conflicts with this in some way?

If you mean what you said, then it is fair to ask what limitation would be legitimate and which would not. Yet you try to disqualify the answer you know to be true as “mumbo jumbo” before you pose the question that involves that VERY ISSUE. Is that honest?

Not all “limitations”, not anything you can think of, is a legitimate property interest. Why? Because to create a property interest, the limitation must “touch and concern” the burdened property. What does that mean? You cannot use your property rights to control the conduct of others in ways that do not violate your specific property rights. There must be a test of what is legitimate and what is not.

The rule is that the limitation MUST require some use or purpose that cannot be done WITHOUT THE BURDENED PROPERTY. Do you disagree with the concept here? When you say “servitude” do you actually mean that I can limit you any way I choose?

What you have presented is a limitation on “remembering” and “telling”, which can certainly be done without the burdened property. Copying, on the other hand, cannot be done without an original to copy from. Therefore a limitation on copying “touches and concerns” the book, while “remembering” and “telling” limit the acts of individual beyond what affects my property rights, the right to prevent copying, and therefore do not touch and concern the property, i.e. the book. Not coincidentally, the positive law of copyrights does not prohibit this conduct either, as you know perfectly well. It is dishonest to imply otherwise.

Therefore, the only way to enforce such a limitation as you suggest here would be through contract, which requires privity and is not binding on a third person; the conclusion you want everyone to reach. Yet this conflicts with your own definition, from your OWN DICTIONARY OF LEGAL TERMS, of what a servitude is and how it operates.

What is even more outrageous is that you know that under current, existing positive law of copyrights, such conduct as you suggest here is not prohibited in any way, yet you present this question as if it proves that copyrights are “dripping with evil”. You pose the question as if it has anything to do with existing law, this discussion, or the issues of servitude related to the act of “copy”.

We are discussing the operation of servitudes, which you cannot or will not confirm, because it clearly shows that the limitation on copying a book CAN be created by contract, operate as a property interest, and thus can operate in exactly the way that easements operate on “immovable” property, when applied to the case of movable property, like a book.

To admit this openly, you would then have to make a case, which you have not done, that such an otherwise legitimate operation of property rules CANNOT be applied to movable property. That would be a difficult task, and so you refuse to go there.

I do not need to speculate on your motivations. Your conduct is obvious to all.

Peter Surda July 7, 2011 at 11:07 am

Wildberry,

Covenants (contracts) can create property interests through easement and servitude.

Is this property interest you talk of a transfer of rights that existed prior to the covenant, between the parties to the covenent?

Peter Surda July 7, 2011 at 11:27 am

Also,

Because your right to prevent trespassing is a property interest tied to your ownership rights in your property, it is not a contract that requires each person alive to sign the dotted line before they are prevented from trespassing.

If one has the only property interest in his property, can he gain more property interest in it by entering into a contract with someone? Or maybe to make it more generic: can A and B agree to grant A a right which neither of them has?

Kid Salami July 7, 2011 at 11:48 am

Wildberry – great post.

Peter Surda July 7, 2011 at 11:51 am

Kid Salami,

you’ve got to be kidding.

Kid Salami July 7, 2011 at 12:01 pm

My jokes are funnier than that.

Stephan Kinsella July 7, 2011 at 10:49 pm

I am at a loss, save dishonesty, to explain how you can say this:

” I was talking about his trotted out legal mumbo jumbo like “A servitude is both a covenant enforceable under contract at law, and an equitable servitude enforceable at equity.” and also this “touch and concern” stuff.”

And then turn around and present a “touch and concern” issue as if you have really discovered something important.

What are you jabbering about? I have never mentioned touch and concern. I try NOT to trot out arcane legal concepts to baffle laymen, esp. when it’s unnecessary.

You and anyone else reading this who understands anything about actual property law, knows this to be true. Anyone can go onto the internet and look it up. What are you doing and why are you doing it?

I am not a legal positivist, like you apparently are. I do not bow down and worship at whatever the state courts and legislatures have said. I’m a libertarian. The state legal system is not.

“The point is that it’s easy to see that that’s waht they ARE: IP rights ARE negative servitudes imposed on movables.”

A servitude, by definition, is a property interest, not a contract.

Wildberry: I am simply classifying the way the law treats IP rights. I am not justifying it. You are such an amoral legal positivist you cannot tell the difference I suppose. Let me be crystal clear: I recognize that IP socialists lke you want IP rights to be treated lke property rights. I recognize that IP law currently does this. No one disagrees that this is what the law does. Our disagreement is over whether it is justified to treat it this way. By showing that the law makes IP into a negative servitude, and by also observing that the owner of the servient estate NEVER AGREED TO IT, it can be seen that this positive property right is UNJUSTIFIED. helloooo

What you have presented is a limitation on “remembering” and “telling”, which can certainly be done without the burdened property. Copying, on the other hand, cannot be done without an original to copy from.

Nonsense. copyright covers more than literal copying, first–it covers derivative works. And these don’t need access to the original. And even if I need access to a copy of a copy of a copy …. of the orignal, it does not mean I need access to property that the original author has any claim, servitude, or property interest in. It just requires information, knowledge. There are millions of examples one could think of.

Therefore, the only way to enforce such a limitation as you suggest here would be through contract, which requires privity and is not binding on a third person; the conclusion you want everyone to reach. Yet this conflicts with your own definition, from your OWN DICTIONARY OF LEGAL TERMS, of what a servitude is and how it operates.

I konw waht a servitude is. I am saying that IP operates as a servitude, but that since it was not agreed to by the burdened party, it is unjust.

What is even more outrageous is that you know that under current, existing positive law of copyrights, such conduct as you suggest here is not prohibited in any way, yet you present this question as if it proves that copyrights are “dripping with evil”.

There are plenty of evil examples of modern copyright, and if morons like you had their way it would be even worse.

Wildberry July 8, 2011 at 4:39 am

@Stephan Kinsella July 7, 2011 at 10:49 pm

What are you jabbering about? I have never mentioned touch and concern. I try NOT to trot out arcane legal concepts to baffle laymen, esp. when it’s unnecessary.

It is good of you to take up the role of protectorate of baffled laymen, but I do not think many laymen reading this with any interest would have that much trouble following along. Likewise I do not presume you are stupid, so I will not respond to you as if you are.

I am not a legal positivist, like you apparently are. I do not bow down and worship at whatever the state courts and legislatures have said. I’m a libertarian. The state legal system is not.

It should be a trivial matter for you then, to show what specific libertarian principles are being offended by my response. That is the, er, POINT.

Wildberry: I am simply classifying the way the law treats IP rights. I am not justifying it. You are such an amoral legal positivist you cannot tell the difference I suppose. Let me be crystal clear: I recognize that IP socialists lke you want IP rights to be treated lke property rights. I recognize that IP law currently does this. No one disagrees that this is what the law does. Our disagreement is over whether it is justified to treat it this way. By showing that the law makes IP into a negative servitude, and by also observing that the owner of the servient estate NEVER AGREED TO IT, it can be seen that this positive property right is UNJUSTIFIED. helloooo

This is the only thing interesting here:

By showing that the law makes IP into a negative servitude, and by also observing that the owner of the servient estate NEVER AGREED TO IT, it can be seen that this positive property right is UNJUSTIFIED.

“The law” makes trespassing an offense of property rights. Does that law violate some libertarian principle I’m unaware of? I believe your point is that some laws are justified under libertarian principles, and others are not, so merely the fact that “laws” exist does not, in itself, justify a given law. I agree.

Likewise, does the fact that “the law” makes IP into a negative servitude invalidate it on the basis of that alone, or is there some other reason which is the basis of your objection to treating IP as a servitude?

It appears that your objection has something to do with consent, yet like a confused law student who mixes up the parties in a lawsuit, you can’t seem to keep things straight with servitudes. Let me help you. I will use mineral rights to draw the parallel with IP rights.

A owns land M. Because owns it, he has exclusive rights to its use. One of those USES is extracting minerals. A creates two deeds to M; one, D1 to the mineral rights to M, and another deed, D2 to the other rights of use for M for all other purposes.

A is the owner of M. M is the servient estate. A offers to sell M to B, and tells him of the limitations of title (i.e. it is burdened with a limitation, to which A retains the benefit of use) and shows him D2. A’s offer is to convey the burdened land M to B under D2. B has NOTICE of the burdened title; he will not acquire mineral rights with the land. He will not be receiving D1. B CONSENTS. B now posses D2, and is bound by the terms of conveyance.

B sells M to C, but C does not read the deed. C CONSENTS to the possession of the land M, but does NOT CONSENT to the burden, and starts to mine the minerals on M. A objects on the basis of his title to the mineral rights. Who prevails?

Answer: A.

C should have known that land has a deed, and that deed records any easements or servitudes which burden the land. Therefore, even though he didn’t bother to look into it, this failure to read the deed does not relieve him of the burden on the deed to his land.

He takes possession of the land subject to the limitations of the deed D2, EVEN THOUGH HE DID NOT CONSENT TO THE BURDEN.
This is the concept of “CONSTRUCTIVE NOTICE”, meaning he COULD have gained notice if he wanted to know and bothered to look. Constructive notice means that he legally CONSENTED to the servitude because he had constructive notice that it exists.

If this were not the case, then someone in B’s position could simply buy the land M, under D2, which is burdened by the a lack of mineral rights and priced lower than it would otherwise be, and turn around and sell it to C for full price, as if he owned D1 and D2. As long as B and C agreed that C would not ever read the deed and could then deny that he “knew” about the burden. In this way, they could conspire to TAKE back the title to mineral rights from A contained in D1, and A could do nothing about it unless he could prove a conspiracy between B and C. That would be an unjust enrichment of B and C, to A’s detriment.

Therefore, it is not necessary to require that C re-negotiate with A about the mineral rights on M. It is not necessary that A and C enter into a contract in which C CONSENTS to the burden. It is recorded on the deed, which was available to him. Any reasonable person buying or taking possession of land knows, or should know, about deeds.

In the case of COPYRIGHTS:

A owns manuscript M. Because he owns it, he has exclusive rights to its use. One of those USES is copying M. A creates two deeds to M; one, D1 to the copying rights to M, and another deed, D2 to the other rights of use for M for all other purposes.

A is the owner of M. M is the servient estate. A offers to sell M to B, and tells him of the limitations of title (i.e. it is burdened with a limitation, to which A retains the benefit of use) and shows him D2. A’s offer is to convey the burdened land M to B. B has NOTICE of the burdened title; he will not acquire copying rights with M. He will not be receiving D1. B CONSENTS. B now posses D2, and is bound by the terms of conveyance.

B sells M to C, but C does not read the deed. C CONSENTS to the possession of the land M, but does NOT CONSENT to the burden, and starts to make copies of M. A objects on the basis of his title to the copy rights. Who prevails?

I think you can go through the parallel argument without me repeating it again here.

QUESTION: Have any libertarian property rights been violated here?

Returning to the land example:

C may attempt to prove that the deed, D1 to M’s mineral rights which A claims to own, are not legitimate for some reason. C argues that mineral rights always come with the land and that D1 should not be justified.

A argues that since he originally owned ALL rights to use M, (Dx) he is entitled to convey or retain specific uses of his land as he chooses. This is implied in the private property rights he owns by owning M. (D1 and D2 belong to the set Dx) If A defines a use that cannot be accomplished without using his property, then that use is clearly included in the rights of use he already owns. In other words, mineral rights for minerals on M, TOUCH AND CONCERNS M in a way which makes the retention of this right legitimate.

Who prevails?

Back to copyrights: I think you get the idea.

QUESTION: Are any libertarian principles violated here?

I konw waht a servitude is. I am saying that IP operates as a servitude, but that since it was not agreed to by the burdened party, it is unjust.

In light of the presentation above, how does this make sense? Who is the “burdened party”?

There are plenty of evil examples of modern copyright, and if morons like you had their way it would be even worse.

I would hope not. I’m all for looking at evil examples of modern copyright. Bring it on. Just don’t tell me copyrights violate some libertarian principle without making a reasonable and logical showing of why. If you know what a servitude is, and you state its operation accurately, then it should be no problem for you to show me exactly where what you believe and what I believe to be true, diverge.

I’ve done most of the heavy lifting for you. What Liberian principle, precisely, is being violated in the example I’ve given? Feel free to trot out arcane legal concepts and other legal mumbo jumbo. I’ll do my best to follow along without being too baffled.

I believe Murray Rothbard once said something about the new legal code that would have to be worked out to conform to the Ancap principles he put forward, that this would be the work of future scholars. Wasn’t he talking about you?

Peter Surda July 8, 2011 at 5:18 am

Wildberry,

how do you determine whether an act is a use of your property or not?

Kid Salami July 8, 2011 at 5:26 am

Wildberry appears to have more staying power than me. This is another good post and precisely and clearly articulates exactly what I would write if I could be bothered. I can think of many problems with this scenarios (as i’m sure can WIldberrry and everyone else) and will accept that in practice it might not take off. But I also ask (as I have from the very start), what (in very precise words that you will be held to) libertarian principles does this violate?

Peter Surda July 8, 2011 at 6:35 am

Kid Salami,

precisely and clearly articulates exactly

If there is something precise and clear about it, it only became apparent to me after my socratic approach. It turned out that it’s a meaningless debate. Servitudes do not create new rights (Wildberry, to my surprise, appears to agree), so unless IP is valid in the first place, you cannot use servitudes to recreate IP. If on the other hand IP is valid, then servitudes are redundant.

So why are you under the impression that there is something brilliant about it? It’s obviously a waste of time. Maybe you should have a good night’s sleep.

Kid Salami July 8, 2011 at 7:12 am

“If on the other hand IP is valid, then servitudes are redundant.”

Is this meant to be some zinger? Jeees. Servitudes in and of themselves are not the point. They are only important because – however they operate – Kinsella spoke of them as consistent with his position and libertarian principles. Its not about whether they are redundant or not, especially not when the condition is “if IP is valid”. Maybe you’re the one who need some sleep.

Peter Surda July 8, 2011 at 7:47 am

Kid Salami,

They are only important because – however they operate – Kinsella spoke of them as consistent with his position and libertarian principles.

Which part of the construct do you have a problem with?
- that you can retain some rights to your (old) property after selling it (positive servitude)
- that you can obligate yourself to any arbitrary restriction by entering into a contract (negative servitude)
- something else
?

Stephan Kinsella July 8, 2011 at 2:25 pm

Wildberry:

By showing that the law makes IP into a negative servitude, and by also observing that the owner of the servient estate NEVER AGREED TO IT, it can be seen that this positive property right is UNJUSTIFIED.

“The law” makes trespassing an offense of property rights. Does that law violate some libertarian principle I’m unaware of?

If something is property, then use of it without permission is trespass. wE al agree to this. We also agree as libertarians that scarce resources (land, our bodies, printers, machines, raw material) are ownable and can be property, and use of these things without the owners’ permission is trespass.

We do not agree that ideas, recipes, information is ownable as property. For the state to pretend that it is, and use this to justify IP law, is just a disguised way of letting A trespass on C’s property rights–we already agree that A has property rights in his scarce goods, and C has property rights in his scarce goods. C may use his body and property in any way he wishes, unless (a) it invades the borders of C’s owned resources; or (b) he contractually assigns a negative servitude in his own property to A, that gives A some kind of control or veto or coownership right over C’s owned resources. Now, IP gives A the right to veto some of C’s uses of C’s owned resources. Thus, it makes him a co-owner with C of C’s resources. But neither (a) nor (b) is true here: C’s use of his own resources to print a book or make a machine (say) does not invade the borders of A’s owned resources, so it is not some act of trespass that can be prohibited. And nor did C agree to a servitude in favor of A. Therefore, the state’s limiting C’s rights to use his own property on the grounds that it trespasses A’s “IP rights” is nonsense. You cannot limit C’s use of his property unless it is actually trespass against others property rights–that is unless it invades the borders of others’ owned scarce resources (property). You cannot just *call* it trespass, you cannot just *say* there is some “IP right” and use this as an excuse to limit C’s rights beyond the normal limits of trespass. at the very least to do so is question begging–which people like commonly resort to, probably because you have no real arguments left.

Imagine a law that prohibits sodomy. Now we libertarians say this is an unjustified restriction on how consenting adults may use their bodies. You cannot magically justify this law–this restriction–by just saying well we hereby deem that conservative christians have a “right” not to be “offended” by the thought of people having sodomy, a “right” that is “trespassed against” when people have sodomite sexual relations. That is what you are doing: you are just asserting there is some “right” that is not a normal property right in a scarce good, and saying that some normal, peaceful uses by others of their property “trespasses against” this “right,” and therefore the restrictions on action in the name of this new-fangled weird “right” are justified. But you cannot just assert that such rights exist. When you are discussing with people then we can assume the validity of things we all agree on, but something that goes beyond this requires argument; mere assertion will not do. Especially when the new proposed claim is inconsistent with the common beliefs both sides to the argument share. Here, we all agree that there can and should be property rights in scarce resources; we agree that actions in general are permissible unless they invade the borders of (trespass against) such property rights, or unless the actor has contractually agreed to some other arrangment. But we do not agree that there are property rights in information–you seem to think there are, but prima facie these rights are incompatible with the property rights we already agree exist, just as the “moral right not to be offended” posited above is.

Likewise, does the fact that “the law” makes IP into a negative servitude invalidate it on the basis of that alone, or is there some other reason which is the basis of your objection to treating IP as a servitude?

You continue to confuse the issue. I am not talking about a servitude A places on a physical object he sells to B. I am talking about the illegitimate servitude the law grants A in C’s own property (his body, land, factory, equipment, machinery, paper, ink, printer, computer, other raw materials–not objects C has bought from A but objects that have nothing to do with A).

A owns land M. Because owns it, he has exclusive rights to its use. One of those USES is extracting minerals. A creates two deeds to M; one, D1 to the mineral rights to M, and another deed, D2 to the other rights of use for M for all other purposes.

A is the owner of M. M is the servient estate.

Not until he sells it (see the legal doctrine of confusion/merger of title). but okay.

A offers to sell M to B, and tells him of the limitations of title (i.e. it is burdened with a limitation, to which A retains the benefit of use) and shows him D2. A’s offer is to convey the burdened land M to B under D2. B has NOTICE of the burdened title; he will not acquire mineral rights with the land. He will not be receiving D1. B CONSENTS. B now posses D2, and is bound by the terms of conveyance.

Your wording and example are confused. I think what you are saying is he sells M to B, but retains the mineral rights. So now A owns D1, and B owns M minus mineral rights, e.g. surface and other rights (your D2).

B sells M to C, but C does not read the deed.

No, he sells D2 (M minus D1) to C. He does not own all of M. So he cannot sell it.

C CONSENTS to the possession of the land M

I have no idea what this means. What has this to do with anything. For B to sell property to C, C does not need to consent to possession. This is confused.

, but does NOT CONSENT to the burden

How do you consent to a burden? what are you talking about? You said B sells M to C but you must mean D2 b/c B does not own M. Or he sells M burdened by D1. However you want to put it. You said C did not read “the deed”, whatever this means–what deed? The deed from B to C? Why would he pay money and not read the deed to ensure he is getting what he thinks he is? Why would he not do a title search to verify B owns waht he thinks? ARe you saying B is defrauding C, by pretending to own all of M, or that C just fails to read the deed closely? Your example sucks.

, and starts to mine the minerals on M. A objects on the basis of his title to the mineral rights. Who prevails?

A because C does not own the mineral rights. C might have an action against B for fraud, or he may not. B cannot sell to C some property right he does not own. Further C ought to know this since he knows that there are reliable public title records that he can consult if he wants to be sure B owns what he purports to sell.

Answer: A.

C should have known that land has a deed, and that deed records any easements or servitudes which burden the land.

Correct. And the reason this is relevant is that the land IS OWNED and for C to use it, he either needs to own it, or to get permission of the owner. To own it he can buy it from the owner, but he first needs to make sure B owns it! If he doesn’t, then he may not be buying it–he may be being defrauded, or making a mistake out of carelessness.

Therefore, even though he didn’t bother to look into it, this failure to read the deed does not relieve him of the burden on the deed to his land.

I am not sure what deed you are talking about. Do you mean the servitude that A filed in the public records? Or the deed between B and C whereby B conveys some property to C?

He takes possession of the land subject to the limitations of the deed D2, EVEN THOUGH HE DID NOT CONSENT TO THE BURDEN.

Does not matter if he consented; he cannot use property he does not own. A owns the mineral rights, not C. C never bought them. Your example is no different from one where C is confused and thinks he owns your house, and enters it and tries to use it, and you oust him because he does not own it. It has nothing to do with consent. It’s purely a question of who owns that land: C, or someone else?

This is the concept of “CONSTRUCTIVE NOTICE”, meaning he COULD have gained notice if he wanted to know and bothered to look.

It’s not notice. It’s evidence of who owns the property.

Let’s take a simpler example to prevent you from using your confusion for equivocation later on. A owns a shiny car. It’s parked in the Walmart parking lot while A is shopping. B stands by the car, pretending to own it. he offers to sell it to C, and C pays B $10,000 and B leaves with the money. Now C thinks he owns the car, but he doesn’t. This has nothing whatsoever to do with notice. It is simply an implication of property rights: A owned the car before and B’s defrauding of C does not change this. The generally known fact that if you pay someone for property they do not own, you will be ripped off, makes people cautious as buyers and makes them verify the purported seller’s ownership, before paying. IF C does not check and verify B’s ownership claims then he is taking the risk that he may be paying for nothing.

Constructive notice means that he legally CONSENTED to the servitude because he had constructive notice that it exists.

well the point is B did not own the mineral rights so could not sell them; and bec. that is a legitimate property right, in a scarce resource, owned by A, then it matters: if C wants to explore for minerals he needs the mineral rights; if B doesn’t own them, C can’t get them from B.

In the case of COPYRIGHTS:

A owns manuscript M. Because he owns it, he has exclusive rights to its use. One of those USES is copying M. A creates two deeds to M; one, D1 to the copying rights to M, and another deed, D2 to the other rights of use for M for all other purposes.

A is the owner of M. M is the servient estate. A offers to sell M to B, and tells him of the limitations of title (i.e. it is burdened with a limitation, to which A retains the benefit of use) and shows him D2. A’s offer is to convey the burdened land M to B. B has NOTICE of the burdened title; he will not acquire copying rights with M. He will not be receiving D1. B CONSENTS. B now posses D2, and is bound by the terms of conveyance.

I see where you are going, but let me clarify something. First, I do not concede that servitudes can legally run with movables. The law does not allow this AFAIK and there are reasons: unlike land which has a unique location and identity and can have ownership recorded in a public registry. Second the copying restriction seems nonsenseical; why would B buy a book if he can’t “copy” it at least in his own mind? Etc. but let this pass for now.

B sells M to C, but C does not read the deed. C CONSENTS to the possession of the land M, but does NOT CONSENT to the burden, and starts to make copies of M. A objects on the basis of his title to the copy rights. Who prevails?

There are no “deeds” to books. There is no public registry. But let this pass. I will concede arguendo that C owns a book coowned by A, and A has the rights to copy it but not C. Fine. (although I think there are arguments against this, but let it pass for now). Basically you view the book as partly owned by A, and C can only use A’s book with A’s consent. BUt this is based on the idea of property rights in scarce resources: A owns (or partly owns) this physical object, this book-object. Analogous to A’s ownership of the mineral rights to M in the first case. The only reason C cannot drill is b/c A owns the mineral rights; he needs permission of A to drill, *because* the property is a scarce good and A owns it (or this aspect of it). Likewise, in the book case, A and B were co-owners of the book, so that A owns part of it and B owns part of it; so C only acquired B’s partial rights in it, and A is still a co-owner of it, with C. C needs permission of A to copy the book b/c A is the/an owner of it, and it is a scarce resource owned by someone.

The problem is A is not worried about only B or C’s copying the book. He is worried about third parties D who never possess any property of A’s at all. Suppose C reads aloud the book on his lawn and D hears it and records it. Now he has on his own property and in his own brain the information in the phsyical book owned by A-C, but D never has possessed that book-object. He only has information. He does not need A’s permission to use information. He is free to impattern his own paper with those patterns and sell books in this way. Unlike in the book-copy case, and unlike the mineral rights case, where C needed permission of that scarce object’s owner to use it in some ways, here, D does not need permission because he is not using property owned by anyone else: he has never possessed or held the book, just as he has never stepped onto the land M to drill for oil.

What you fail to realize is that there is no way for you to use contract or servitudes or reserved rights (I explain this in detail in the ‘Reserved rights” section of my AIP already) to bind third parites, such as D. That is why you cannot recreate IP in this manner. Contract binds only those in privity; and you cannot use servitudes as you can with objects, because the nature of information is that you can use it without owning or possessing some object owned by the original author.

Stephan Kinsella July 8, 2011 at 3:47 pm

Kid:

My brain is fried on this for now – I think I’ve changed my mind about the sincerity of one rather important person in this scenario.

Agreed, re Wildberry. in fact most IP proponents are like this.

Wildberry appears to have more staying power than me. This is another good post and precisely and clearly articulates exactly what I would write if I could be bothered. I can think of many problems with this scenarios (as i’m sure can WIldberrry and everyone else) and will accept that in practice it might not take off. But I also ask (as I have from the very start), what (in very precise words that you will be held to) libertarian principles does this violate?

It is not that it violates lib principles, it is that it does not bind third parties. All he is doing is showing how people who contrat are bound; or that some scarce resources may be co-owned. That is all.

Stephan Kinsella July 8, 2011 at 3:54 pm

KId: “Is this meant to be some zinger? Jeees. Servitudes in and of themselves are not the point. They are only important because – however they operate – Kinsella spoke of them as consistent with his position and libertarian principles. Its not about whether they are redundant or not, especially not when the condition is “if IP is valid”. Maybe you’re the one who need some sleep.”

Well I said normal servitudes created by contract are legitimate; and I said you can *clasisfy* the IP rights the state creates as types of INVOLUNTARy servitudes which are illegitimate because they are not agreed to.

Wildberry July 8, 2011 at 5:02 pm

@Stephan Kinsella July 8, 2011 at 3:47 pm

“My brain is fried on this for now – I think I’ve changed my mind about the sincerity of one rather important person in this scenario.”

Agreed, re Wildberry. in fact most IP proponents are like this.

No one said you weren’t good at what you do, Stephan. That was good deflection. Competing with Reagan for title of TEFLON MAN?

Kid-S,

He is wearing me out but not down. Time to take a break.

Wildberry July 8, 2011 at 11:27 pm

@Stephan Kinsella July 8, 2011 at 2:25 pm

If something is property, then use of it without permission is trespass. wE al agree to this. We also agree as libertarians that scarce resources (land, our bodies, printers, machines, raw material) are ownable and can be property, and use of these things without the owners’ permission is trespass.

OK, you are simply saying that trespass fits within the Kinsella/libertarian property framework (dare I suggest the Klpf?), and its legitimacy is based on that, not the existence of positive laws, which may or may not be justified for other reasons. Got it (years ago, but please continue).

We do not agree that ideas, recipes, information is ownable as property.

Actually, this is your first error here. We actually DO agree about “ideas, recipes and information” not being ownable. What we disagree about, apparently, is whether it is accurate to say the meaning all of those words is equivalent to IP, specifically in copyrights, an original work of authorship, or an original manuscript. That is one major source of controversy.

For the state to pretend that it is, and use this to justify IP law, is just a disguised way of letting A trespass on C’s property rights–

Whatever you actually mean by this, since you refused to be tied down precisely on th meaning of the words you use here, this is irrelevant to me. Whether they are justified by state law, or libertarian principles, or any principles of ethics, law and economics, is sufficient to justfy their legitimacy. See my first comment above, starting with “OK…”

As to your analogy about A violating C’s rights, you are claiming that up is down and right is left. The issue has always been and continues to be whether C is using his own property to violate A’s rights to copyrights. This fallacy is so important to you, you will never allow it to be challenged. No amount of reference to the obvious truth of property rule operations will penetrate this need to hang your hat on this complete fallacy. That’s two.

we already agree that A has property rights in his scarce goods, and C has property rights in his scarce goods.

Yes, and we have agreed that an author owns his original manuscript. Therefore, according to you, it is scarce property.

Apparently, however, we disagree about exactly what the nature of that property is. You seem to insist that it is the paper and ink that the manuscript is composed of, I insist that paper and ink are common resources, and are more non-scarce due to abundance than scarce in terms of an object that is prone to rivalry. What makes the manuscript scarce is the combination of the paper, ink and content, which I am describing as my general case, the case that I am trying to encourage you to stay within. In this case, the original manuscript is the combined product of both the medium and the message. You seem to hold that it is the paper that governs the identity of property, as if the manuscript I own and the blank paper you own are logically equivalent. This enables you to say that any rights I claim in my paper “takes” something from you and your paper. As my daddy might say, this is bass ackwards. That’s at least three.

C may use his body and property in any way he wishes, unless (a) it invades the borders of C’s owned resources;

Whatever you intend to claim later about where those “borders” are and how you recognize them…how can C invade the borders of C’s owned resources?

You must mean A’s borders. So depending upon how you define “borders” we could theoretically solve a trespass problem. Since you do not define them, I guess you are leaving yourself plenty of room to come back to that however you need to.

or (b) he contractually assigns a negative servitude in his own property to A, that gives A some kind of control or veto or coownership right over C’s owned resources.

And now the famous Klpf Strawman! You completely make an abortion of your own description of a servitude, which I will not bother to repeat or correct yet again. You can easily see my correction on this very thread. In brief, you have the “assignment” (another term that does not apply here) flowing in the wrong direction. C does not need to do anything with A; it is A’s property, so he decides what to sell and what to keep for himself. I’m losing count, I think that is four.

Now, IP gives A the right to veto some of C’s uses of C’s owned resources. Thus, it makes him a co-owner with C of C’s resources.

I’m going to ignore the “veto” reference, which is wrong, and move along to the co-ownership fallacy.

This way of describing the relationship between A and C is completely fallacious. If ownership is control, it is also implies alienability. Your use of “co-ownership” creates problems with describing what “co-owners” can do with their own property without the consent of the other party. Co-owners cannot sell their own property without the other’s consent. Owners can sell the property they own, and nothing more. So, with regard to alienability, your use of “co-owner” to describe this situation crates a mess. You completely conflate “own” and “use” and confuse the right to “sell”. There is no meaningful “co-ownership” relationship between A and C, and none is required. How many are we up to now?

But neither (a) nor (b) is true here: C’s use of his own resources to print a book or make a machine (say) does not invade the borders of A’s owned resources, so it is not some act of trespass that can be prohibited.

This looks like a non-sequitur assertion without support, even if I know how to go back and follow your logic up to this point. I have definitely lost count.

And nor did C agree to a servitude in favor of A.

Wrong direction…A owns the property, A decides what to do with it. C takes it or leaves it. You don’t buy land with an easement on it and then agree to cede back your right to exclude others. You buy it without the right to exclude others from that little strip of land that you own, but others have a right to use. Are you sure you know what a servitude is?

Therefore, the state’s limiting C’s rights to use his own property on the grounds that it trespasses A’s “IP rights” is nonsense.

To use “therefore” here is hilarious. First, how did the state get in here? I thought we were talking about the property rights of A, B and C? At the most, the state’s role here is to pass laws, like trespass laws, and enforce violations. Who cares about that? That is a technical problem, you said.

We know that property M, the author’s original manuscript, starts out as his property. Somehow, in your Rube Goldberg, house of cards, hocus pocus abortion of a theory of property rights, C get’s A’s property free and clear. This is better than Professor Irwin Corey!

You cannot limit C’s use of his property unless it is actually trespass against others property rights–that is unless it invades the borders of others’ owned scarce resources (property). You cannot just *call* it trespass, you cannot just *say* there is some “IP right” and use this as an excuse to limit C’s rights beyond the normal limits of trespass. at the very least to do so is question begging–which people like commonly resort to, probably because you have no real arguments left.

I admit, I’m exhausted. I would retort that you just can’t call it “free goods” and call it “liberty” without getting reasonably and understandably from point a to point b, no pun intended. Have you ever actually watched Professor Corey work? I swear he can give you perfectly logical reasons why 2+2 =5.2, but you have to give him plenty of elbow room and an eraser. You create enough elbow room to hold all the elbows and knees on earth.

Imagine a law that prohibits sodomy.

That is really too horrible to imagine. No more corn holing? The State really is dripping with evil! But ok…are we going to get sex and rock and roll a little bit later?

Now we libertarians say this is an unjustified restriction on how consenting adults may use their bodies. You cannot magically justify this law–this restriction–by just saying well we hereby deem that conservative christians have a “right” not to be “offended” by the thought of people having sodomy, a “right” that is “trespassed against” when people have sodomite sexual relations. That is what you are doing:

Have you been looking in my windows again?

you are just asserting there is some “right” that is not a normal property right in a scarce good, and saying that some normal, peaceful uses by others of their property “trespasses against” this “right,” and therefore the restrictions on action in the name of this new-fangled weird “right” are justified.

Even I cannot think of a sufficiently sarcastic quip worthy of this utter nonsense.

But you cannot just assert that such rights exist. When you are discussing with people then we can assume the validity of things we all agree on, but something that goes beyond this requires argument; mere assertion will not do. Especially when the new proposed claim is inconsistent with the common beliefs both sides to the argument share.

Exactly! Looking back over this post, our common beliefs are…give me a minute…oh, you have a list.

Here, we all agree that there can and should be property rights in scarce resources;

Property is a human device…

we agree that actions in general are permissible unless they invade the borders of (trespass against) such property rights, or unless the actor has contractually agreed to some other arrangment.

Assuming we know where the borders of that property are and how to recognize them…

But we do not agree that there are property rights in information–you seem to think there are, but prima facie these rights are incompatible with the property rights we already agree exist, just as the “moral right not to be offended” posited above is.

See, we cannot even agree on what you think I believe…I have always denied that ideas, recipes, and mere “information” are sufficient as property. The positive law you so hold in such disdain is consistent with what both you and I believe, in this regard.

Our difference is that I know from these exchanges, that you are just winding up to say that “information” and “IP”, or “original works of authorship” are the same thing, and if I want to claim that an author’s original manuscript, including the unique expressions he and he alone placed on those pages, is property, then I am also guilty of saying that “ideas are not free”, which makes me look ridiculous, which I presume is at least one good purpose you have for saying so.

You continue to confuse the issue. I am not talking about a servitude A places on a physical object he sells to B. I am talking about the illegitimate servitude the law grants A in C’s own property (his body, land, factory, equipment, machinery, paper, ink, printer, computer, other raw materials–not objects C has bought from A but objects that have nothing to do with A).

See, that’s interesting, because I don’t know anything about the one you are talking about. Which one is that? And all this time, I’ve been talking about the servitude A places on a physical object he sells to B; ones that DO have something to do with A. This has been really helpful…

This is me, right? “A owns land M. Because owns it, he has exclusive rights to its use. One of those USES is extracting minerals. A creates two deeds to M; one, D1 to the mineral rights to M, and another deed, D2 to the other rights of use for M for all other purposes.

A is the owner of M. M is the servient estate.”

Not until he sells it (see the legal doctrine of confusion/merger of title). but okay.

I guess we are over the legal mumbo jumbo issue. (I understand this doctrine is disfavored modernly, but no matter)

“A offers to sell M to B, and tells him of the limitations of title (i.e. it is burdened with a limitation, to which A retains the benefit of use) and shows him D2. A’s offer is to convey the burdened land M to B under D2. B has NOTICE of the burdened title; he will not acquire mineral rights with the land. He will not be receiving D1. B CONSENTS. B now posses D2, and is bound by the terms of conveyance.”

Your wording and example are confused. I think what you are saying is he sells M to B, but retains the mineral rights. So now A owns D1, and B owns M minus mineral rights, e.g. surface and other rights (your D2).

Yes, you have it, but the deed is not the land. The land is M. The deed that B owns is D2. That describes what he owns, but he owns M.

“B sells M to C, but C does not read the deed.”

No, he sells D2 (M minus D1) to C. He does not own all of M. So he cannot sell it.

May I assume that you do not mean we are describing the sale of paper, but actual land, M, to which B has title D2?

“C CONSENTS to the possession of the land M”

I have no idea what this means. What has this to do with anything. For B to sell property to C, C does not need to consent to possession. This is confused.

No idea? Nobody forces C to take possession of M, he does so of his own free will. That’s all.

“but does NOT CONSENT to the burden”

How do you consent to a burden? what are you talking about?

I’m talking about C. C didn’t read the dead, so he didn’t “know” about the limitation of use, so he could not directly express consent to something he is unaware of. This is important, because I am granting you the fact that C and A and C and B have no contractual understanding at all. C is just taking possession of M.

You said B sells M to C but you must mean D2 b/c B does not own M.

I am asking you to follow the land, M. Otherwise, you are correct that what B owns is described in D2. He cannot sell to C more than he owns. D2 is M-D1. But he owns actual land.

Or he sells M burdened by D1. However you want to put it.

This is how I prefer to put it; B sells M to C, burdened by the benefits retained by A, as described in D1. B can only sell what is described, therefore, in D2.

You said C did not read “the deed”, whatever this means–what deed?

D2. The deed from B to C? Yes. That deed, which would otherwise inform C that he was only getting land with no mineral rights.

Why would he pay money and not read the deed to ensure he is getting what he thinks he is? Why would he not do a title search to verify B owns waht he thinks? ARe you saying B is defrauding C, by pretending to own all of M, or that C just fails to read the deed closely? Your example sucks.

B is not defrauding C, C is a lazy idiot, say. He won it in a poker game, whatever. Don’t read any extra facts in, this is what is happing.

“and starts to mine the minerals on M. A objects on the basis of his title to the mineral rights. Who prevails?”

A because C does not own the mineral rights.

That’s right, and how does A prove that C does not have mineral rights? Because A has D1, which proves he has title to the mineral rights to M. C can show that he bought M from B, but cannot produce a deed which shows he bought an unencumbered title to M.

C might have an action against B for fraud, or he may not. B cannot sell to C some property right he does not own. Further C ought to know this since he knows that there are reliable public title records that he can consult if he wants to be sure B owns what he purports to sell.

That’s right. We both arrived at the same answer. C is bound, because he “ought to know” about deeds. The fact that he is a lazy idiot does not relieve him of the burden from which A benefits. OK?

C should have known that land has a deed, and that deed records any easements or servitudes which burden the land.

This seems to confirm your understanding, which coincides with mine. We can now say we agree about how servitudes work. The State is not involved (assume private title records). C did not consent to anything, or give up anything to A that he owned before he bought the land. A does not need to “veto” what C does; A just needs to enforce his rights, as described by D1.

Correct. And the reason this is relevant is that the land IS OWNED and for C to use it, he either needs to own it, or to get permission of the owner. To own it he can buy it from the owner, but he first needs to make sure B owns it! If he doesn’t, then he may not be buying it–he may be being defrauded, or making a mistake out of carelessness.

Isn’t all of this agreement stuff fun?

No matter how you look at it, A’s rights to the minerals on M are secured, no matter the reason C uses to claim he didn’t know. Even if B defrauded C, C is still bound, but has a cause of action against B. A has the right to an injunction to prevent C from taking the minerals anyway. Such enforcement by A against C would not be aggression, and therefore does not violate NAP.

“Therefore, even though he didn’t bother to look into it, this failure to read the deed does not relieve him of the burden on the deed to his land.”

I am not sure what deed you are talking about. Do you mean the servitude that A filed in the public records? Or the deed between B and C whereby B conveys some property to C?

D2. The one B owned before he sold M to C. C only got what B had to sell and nothing more.

“He takes possession of the land subject to the limitations of the deed D2, EVEN THOUGH HE DID NOT CONSENT TO THE BURDEN.”

Does not matter if he consented; he cannot use property he does not own. A owns the mineral rights, not C. C never bought them.

Exactly! This is how a servitude works. This is why it conforms to libertarian principles of property, because it operates within the framework of private property rights.

Your example is no different from one where C is confused and thinks he owns your house, and enters it and tries to use it, and you oust him because he does not own it. It has nothing to do with consent. It’s purely a question of who owns that land: C, or someone else?

It is a question of resolving conflict over rivalrous resources. The difference between my example and the one you give above is that in my example, C is taking legal possession of property with limitations of use, while in your example, he tries to take possession of something in its entirety that he has no legal right to, or reason to believe he owns, and he just gets ejected.

In your example, we have no idea why he thinks he owns my house, but in mine, we see that he took possession of something legally, yet tried to gain more than he purchased. I agree it is a subtle difference, but it is rather critical when drawing a parallel to copyrights.

“This is the concept of “CONSTRUCTIVE NOTICE”, meaning he COULD have gained notice if he wanted to know and bothered to look.”

It’s not notice. It’s evidence of who owns the property.

Again, I think we are in agreement here. The precise question is what evidence is available to “prove” who owns what property. It is a sophisticated problem based on the idea that property is alienable, and therefore rights can be unbundled and retained by the owner, and that owner can convey anything he doesn’t retain.

The question is, what device might we formulate in order to create evidence that can be used to resolve disputes over rivalrous resources? Servitudes are a device that handles this type of problem, where “title” to “rights of exclusive use” are unbundled, and alienated (or sold) independently. That is the critical feature of a servitude; it is a device designed for that purpose. Such a device could come in handy when trying to define a system for securing property rights in an original manuscript, which an author, at some point, owns outright.

Let’s take a simpler example to prevent you from using your confusion for equivocation later on.

OK. Fair’s fair.

A owns a shiny car. It’s parked in the Walmart parking lot while A is shopping. B stands by the car, pretending to own it. he offers to sell it to C, and C pays B $10,000 and B leaves with the money. Now C thinks he owns the car, but he doesn’t.

This has nothing whatsoever to do with notice. It is simply an implication of property rights: A owned the car before and B’s defrauding of C does not change this. The generally known fact that if you pay someone for property they do not own, you will be ripped off, makes people cautious as buyers and makes them verify the purported seller’s ownership, before paying. IF C does not check and verify B’s ownership claims then he is taking the risk that he may be paying for nothing.

Exactly, but I don’t understand why you are trying to split hairs. Substitute the pink slip for the deed and you have the same scenario. The question is HOW do you prove who has legal title. After all, C paid money, so he has a claim. A has a claim because he has the pink slip. It is an allocation of rights problem, just like before. The issue is what device should we employ to sort it all out? I cars, we use pink slips and for land we use deeds. The question is, what do we use for copyrights?

“Constructive notice means that he legally CONSENTED to the servitude because he had constructive notice that it exists.”

well the point is B did not own the mineral rights so could not sell them; and bec. that is a legitimate property right, in a scarce resource, owned by A, then it matters: if C wants to explore for minerals he needs the mineral rights; if B doesn’t own them, C can’t get them from B.

Yes, we can agree this is the situation. It is a legitimate property right because you cannot explore and extract minerals on M unless you own the mineral rights on M. You cannot have mineral rights in M without M. Sorry, but I have to say it; mineral rights touch and concern M. That is why we can say they are “legitimate”.

“In the case of COPYRIGHTS:

A owns manuscript M. Because he owns it, he has exclusive rights to its use. One of those USES is copying M. A creates two deeds to M; one, D1 to the copying rights to M, and another deed, D2 to the other rights of use for M for all other purposes.

A is the owner of M. M is the servient estate. A offers to sell M to B, and tells him of the limitations of title (i.e. it is burdened with a limitation, to which A retains the benefit of use) and shows him D2. A’s offer is to convey the burdened land M to B. B has NOTICE of the burdened title; he will not acquire copying rights with M. He will not be receiving D1. B CONSENTS. B now posses D2, and is bound by the terms of conveyance.”

I see where you are going, but let me clarify something. First, I do not concede that servitudes can legally run with movables. The law does not allow this AFAIK and there are reasons: unlike land which has a unique location and identity and can have ownership recorded in a public registry. Second the copying restriction seems nonsenseical; why would B buy a book if he can’t “copy” it at least in his own mind? Etc. but let this pass for now.

I understand the issue of servitudes on movables is not settled. I say that actually, the law does allow this, but uses different terms to describe the situation. For chattel, the concept is “bailment”; possession is transferred, but ownership is not, and the bailor has specific limitations on use. He can legally possess it, even use it within certain limits, but he cannot alienate it (sale or gift or abandonment) because bailment is not ownership. That would be conversion, a form of theft and perhaps fraud.

But pink slips are a form of “deed”. Cars can be rented, leased, or sold, or used as collateral for a loan. The rights to the car is recorded on the pink slip and becomes part of a public record. Generally, the more valuable the asset or resource, the more formal the process for recording and conveying title, because more “valuable” really just means more scarce and therefore more rivalrous. As scarcity increases (or abundance decreases), the likelihood of rivalry increases, so more formal systems for resolving these conflicts naturally evolve.

“B sells M to C, but C does not read the deed. C CONSENTS to the possession of the land M, but does NOT CONSENT to the burden, and starts to make copies of M. A objects on the basis of his title to the copy rights. Who prevails?”

There are no “deeds” to books. There is no public registry. But let this pass.

OK, but let me park my response here; yes and no. There are no deeds, but certainly patents are a form of “deed”. Commercially published books usually contain copyright notices with an attribution to the owner of the copyrights. There is a registration process available.

I will concede arguendo that C owns a book coowned by A, and A has the rights to copy it but not C. Fine. (although I think there are arguments against this, but let it pass for now).

Ok, I’ll try to follow along.

Basically you view the book as partly owned by A, and C can only use A’s book with A’s consent.

I think this is wrong, as I’ve said. It is not a “co-ownership”. A owns what he owns, and C owns what he owns, nothing more or less; identical to the mineral rights example.

But this is based on the idea of property rights in scarce resources: A owns (or partly owns) this physical object, this book-object. Analogous to A’s ownership of the mineral rights to M in the first case.

Yes.

The only reason C cannot drill is b/c A owns the mineral rights; he needs permission of A to drill, *because* the property is a scarce good and A owns it (or this aspect of it). Likewise, in the book case, A and B were co-owners of the book, so that A owns part of it and B owns part of it; so C only acquired B’s partial rights in it, and A is still a co-owner of it, with C. C needs permission of A to copy the book b/c A is the/an owner of it, and it is a scarce resource owned by someone.

This co-ownership idea screws things up. Give it up. A and B were not co-owners of the book. B can sell his rights to the book to the extent he owns them. A is not involved as long as B does not assume he has rights he does not. If B sells to C, either C “knows or should have known” about the limited title, or he was misled by B, but in either case, he cannot own more than B owned; B can only convey title equal to what he already owns.

The problem is A is not worried about only B or C’s copying the book. He is worried about third parties D who never possess any property of A’s at all.

From here, you are opening new controversies. You are leaving the general case we have been discussing and introducing new facts.

Suppose C reads aloud the book on his lawn and D hears it and records it. Now he has on his own property and in his own brain the information in the phsyical book owned by A-C, but D never has possessed that book-object. He only has information. He does not need A’s permission to use information.

Up to this point, what you describe is not a violation of a right to make copies, and fits well within the boundaries of fair use.

He is free to impattern his own paper with those patterns and sell books in this way. Unlike in the book-copy case, and unlike the mineral rights case, where C needed permission of that scarce object’s owner to use it in some ways, here, D does not need permission because he is not using property owned by anyone else: he has never possessed or held the book, just as he has never stepped onto the land M to drill for oil.

I think you are making a huge leap of logic here that is not supportable from our agreements thus far.

You are assuming that “to impattern” means something which you have not defined or specified. The general case is “direct copy”. To say that D makes a direct copy, you must assume that D has unnatural skills of recall, and can transcribe, word for word, in exact duplication of sequence, punctuation, etc. everything that he heard, sufficiently to make an exact copy from memory; 500 pages worth. I don’t think that is a reasonable assumption. So what is more likely to occur, is for D to retain certain facts and images and details, and he weaves these into his own novel, and A reads it and it looks familiar, and sues D for copying his work. This is a derivative work problem, and is well beyond our current discussions. It involves a refinement in the concept of “copy” so that a system of evidence can look at circumstances surrounding the particular facts of the case, and make a determination of whether there was copying or not. That is beyond the scope of what we are talking about, but perhaps you can bring this example later, when we have established a framework we can agree to, from which to further refine the relationships.

What you fail to realize is that there is no way for you to use contract or servitudes or reserved rights (I explain this in detail in the ‘Reserved rights” section of my AIP already) to bind third parites, such as D. That is why you cannot recreate IP in this manner. Contract binds only those in privity; and you cannot use servitudes as you can with objects, because the nature of information is that you can use it without owning or possessing some object owned by the original author.

You are beginning to discover, I hope, that my position has been perhaps a little more reasonable than you have allowed.

You are correct. You actually could do what you say. You COULD make a law that gave property rights to individuals forever that secured exactly what you say. That would be wrong, and in fact is NOT part of the current copyrights scheme or framework.

Mises describes the framework you describe here in HA. On the one hand, ideas are free and inexhaustible. On the other, intellectual works are not mere ideas and require capital investment to produce. Going all the way one way or the other each creates its own set of problems.

One way of reaching a compromise between the two extremes is to distinguish between “ideas” and “original works of expression”. Another is to limit the terms for which these rights are to be secured. Both are features of existing positive law.

If you start out limiting the term, and gradually increase it, beyond a certain limit (which we have long surpassed, IMHO) you are tilting the balance back towards one of the extremes; unlimited private ownership. Make the term zero, and you tilt the balance too far in favor of “ideas are free”, meaning you dissolve the distinction between “ideas” and “works” and treat them both as the same thing.

What I think you fail to realize, and I mean this seriously even though I was having some fun with you earlier in this post, is that you are a radical in favor of shifting the balance of concerns towards “ideas are free”. This is why you resist any suggestion that you are equivocating “ideas, recipes, and information” with “original works of authorship”; the idea of “a rising sun” and the novel “The Sun Also Rises” are not the same thing. One can never be property, and the other legitimately can.

Thank you for your tone in this post. It was a refreshing change.

Stephan Kinsella July 9, 2011 at 2:01 am

Wildberry:

We do not agree that ideas, recipes, information is ownable as property.

Actually, this is your first error here. We actually DO agree about “ideas, recipes and information” not being ownable. What we disagree about, apparently, is whether it is accurate to say the meaning all of those words is equivalent to IP, specifically in copyrights, an original work of authorship, or an original manuscript. That is one major source of controversy.

Meh. This is absurd. Trying to have it both ways. You want to defend property in information/recipes/ideas, but you refuse to call it this.

For the state to pretend that it is, and use this to justify IP law, is just a disguised way of letting A trespass on C’s property rights–

Whatever you actually mean by this, since you refused to be tied down precisely on th meaning of the words you use here, this is irrelevant to me. Whether they are justified by state law, or libertarian principles, or any principles of ethics, law and economics, is sufficient to justfy their legitimacy.

What? If it’s incompatible w/ libertarina principles and justified by state law, it’s not “sufficient” to justify its legitimacy. What are you talking about? are you a pure legal positivist? If so, any law the state passes is just–all redheads should be killed, etc.

As to your analogy about A violating C’s rights, you are claiming that up is down and right is left. The issue has always been and continues to be whether C is using his own property to violate A’s rights to copyrights. This fallacy is so important to you, you will never allow it to be challenged.

An issue is a fallacy? what? If you assert there are IP rights you have to show that C’s actions violate A’s property rights. You can’t just assert that A has a copyright that is a legitimate property right; that is the debated issue.

we already agree that A has property rights in his scarce goods, and C has property rights in his scarce goods.

Yes, and we have agreed that an author owns his original manuscript. Therefore, according to you, it is scarce property.

C’s or D’s whoever, printing of a book is not a use of A’s manuscript.

Apparently, however, we disagree about exactly what the nature of that property is. You seem to insist that it is the paper and ink that the manuscript is composed of, I insist that paper and ink are common resources

what’s a common resource? What’s the relevance of this bizarre assertion?

, and are more non-scarce due to abundance than scarce in terms of an object that is prone to rivalry. What makes the manuscript scarce is the combination of the paper, ink and content,

wrong. It is a rivalrous object no matter what is impatterned on it. You are confusing the source of its value, with the reason for its economic scarcity. I may value book x more than a blank book y because of the way it’s patterned, just like I value a sword more than a hunk of unshaped metal. But book x, book y, sword, and metal, are all scarce resources. It does not become “more” scarce when it is arranged into a more valuable arrangement.

which I am describing as my general case, the case that I am trying to encourage you to stay within. In this case, the original manuscript is the combined product of both the medium and the message.

Yes, I know what you are doing: equivocation. that is why you use the ambiguous term “manuscript” which can mean a physical object, or the “work” itself; you get me to agree that the author owns “the manuscript” in the “object’ sense, so I agree; later you switch to the broader “work” sense to try to disingenously show that I have already agreed to copyright.

That is why I have been precise in saying “scarce resources” or “physical objects” to keep it clear. And that is why you use “manuscript,” in an attempt to cheat.

You seem to hold that it is the paper that governs the identity of property, as if the manuscript I own and the blank paper you own are logically equivalent.

I have no idea what it means for two objects to be “logically equivalent.” Even two copies of Atlas Shrugged are not “logically equivalent” though they are similar in some respects. You seem to be veering in the direction of Neil Schulman’s ridiculous logorights argument.

This enables you to say that any rights I claim in my paper “takes” something from you and your paper. As my daddy might say, this is bass ackwards. That’s at least three.

You are totally confused. You can’t just go claiming rights to stop people from using their own property. Just like the example I gave of the moral majoritarian who claims a right not to be offended at the sodomous actions of libertines.

C may use his body and property in any way he wishes, unless (a) it invades the borders of C’s owned resources;

Whatever you intend to claim later about where those “borders” are and how you recognize them…how can C invade the borders of C’s owned resources?

You must mean A’s borders.

yes; typo.

So depending upon how you define “borders” we could theoretically solve a trespass problem. Since you do not define them, I guess you are leaving yourself plenty of room to come back to that however you need to.

I define borders of scarce resources like anyone does. You apparently now are switching to a ridiculous argument that the “borders” of “the manuscript” extend to the whole universe so that if someone far away prints a book too similar that somehow invades the borders of your “manuscript”. hahaha. funny. But I think you are actually serious. Not funny. well, it’s funny funny, but not funny funny, if you know what I mean.

This way of describing the relationship between A and C is completely fallacious. If ownership is control, it is also implies alienability. Your use of “co-ownership” creates problems with describing what “co-owners” can do with their own property without the consent of the other party. Co-owners cannot sell their own property without the other’s consent. Owners can sell the property they own, and nothing more.

This is pointless pettifogging. You can describe the nature of a sale of a co-owner’s interest in a number of ways.

So, with regard to alienability, your use of “co-owner” to describe this situation crates a mess. You completely conflate “own” and “use” and confuse the right to “sell”. There is no meaningful “co-ownership” relationship between A and C, and none is required. How many are we up to now?

Of course it’s co-ownership, by standard libertarian theory: here we have a resource (a physical book) that two people have (different) rights to control. C can read it and use it for a pillow, but he cannot copy it without A’s permission; A can deny or grant permission to copy. They are co-owners. But it is not essential to look at it this way. YO ucan also view it as a book owned by A, that C merely has limited possessory or use rights over (a type of usufruct). Or you can view it as owned by C, but burdened by a servitude in A’s favor. Legal classificationism follows reality, it does not define it.

And nor did C agree to a servitude in favor of A.

Wrong direction…A owns the property, A decides what to do with it. C takes it or leaves it. You don’t buy land with an easement on it and then agree to cede back your right to exclude others. You buy it without the right to exclude others from that little strip of land that you own, but others have a right to use. Are you sure you know what a servitude is?

Servitudes can be done at the initial sale; but they are also often created contractually, by the owner of property. For the former: A sells to B a tract of land burdened by a servitude in A’s favor–say, a building restriction–so basically A sells to B part of the land, and reserves part of it to himself. But suppose B owns Blackacre outright. A approaches him and asks for a servitude (say, a right of way); B can grant this contractually to A.

We know that property M, the author’s original manuscript, starts out as his property. Somehow, in your Rube Goldberg, house of cards, hocus pocus abortion of a theory of property rights, C get’s A’s property free and clear.

And here is the equivocation I mentioned earlier. First you use manuscript to refer to a physical book A sold to B. The C in the example is not using that book. He is just printing a copy of it on his own property (if I remember the example right). To say C ‘gets” A’s property is to use manuscript in the broader copyright sense.

Property is a human device…

…designed to permit conflict-free use of scarce resources. Which ideas, patterns, and “economic interests” are not.

we agree that actions in general are permissible unless they invade the borders of (trespass against) such property rights, or unless the actor has contractually agreed to some other arrangment.

Assuming we know where the borders of that property are and how to recognize them…

The borders of a manuscript do not extend over the whole planet, as you seem to think they do (you and J. Neil Schulman–at least he was explicit in his argument instead of devious like you).

No, he sells D2 (M minus D1) to C. He does not own all of M. So he cannot sell it.

May I assume that you do not mean we are describing the sale of paper, but actual land, M, to which B has title D2?

Of course; but your example was confused. If by D2 you mean a deed, then it is not to M, it is to M-burdened-by-the-servitude-defined-in-D1.

“C CONSENTS to the possession of the land M”

I have no idea what this means. What has this to do with anything. For B to sell property to C, C does not need to consent to possession. This is confused.

No idea? Nobody forces C to take possession of M, he does so of his own free will. That’s all.

But it’s irrelevant. It has nothing to do with whether there was a property transfer to C, or what it was.

“but does NOT CONSENT to the burden”

How do you consent to a burden? what are you talking about?

I’m talking about C. C didn’t read the dead, so he didn’t “know” about the limitation of use, so he could not directly express consent to something he is unaware of. This is important, because I am granting you the fact that C and A and C and B have no contractual understanding at all. C is just taking possession of M.

It is irrelevant. That goes to whether B defrauded C or not. If C didn’t know, that’s his fault but it is irrelevant to the nature of the property transferred to him by B. B can only transfer what he owns.

I am asking you to follow the land, M. Otherwise, you are correct that what B owns is described in D2. He cannot sell to C more than he owns. D2 is M-D1. But he owns actual land.

He owns land burdend by a servitude.

This is how I prefer to put it; B sells M to C, burdened by the benefits retained by A, as described in D1. B can only sell what is described, therefore, in D2.

Fine.

B is not defrauding C, C is a lazy idiot, say. He won it in a poker game, whatever. Don’t read any extra facts in, this is what is happing.

Then C has no mineral rights. If he tries to drill he is committing a type of trespass.

That’s right, and how does A prove that C does not have mineral rights? Because A has D1, which proves he has title to the mineral rights to M.

But the dispute is ABOUT ownership and control of a given scarce resource: the land (and minerals). If A and C both claim the right to the minerals, then only one can prevail, and they have to show evidence as to who owns it. And A will prevail because he can and C cannot.

C can show that he bought M from B,

He can show he bought M-minus-minerals from B.

but cannot produce a deed which shows he bought an unencumbered title to M.

Right. Because he did not. and the reasons he NEEDS to show this is that he wants to use the minerals, a scarce resource. If someone else owns it, he needs their permission.

That’s right. We both arrived at the same answer. C is bound, because he “ought to know” about deeds.

I never really said he ought to know. I simply say that B can only sell what he owns, and that there are ways to prove what B and A owned.

The fact that he is a lazy idiot does not relieve him of the burden from which A benefits. OK?

I would not put it this way–it’s not a “burden,” it’s that A and C are now co-owners (or, if you prefer, A owns the minerals and C the surface minus certain surface rights A needs to exploit the minerals).

A does not need to “veto” what C does; A just needs to enforce his rights, as described by D1.

Well A can veto C’s extracting minerals. Veto just means deny permission: tell someone to stop.

No matter how you look at it, A’s rights to the minerals on M are secured, no matter the reason C uses to claim he didn’t know.

They are owned. Not “secured.”

Even if B defrauded C, C is still bound,

C is not “bound.” That is a contractual concept. A owns the mineral estate, C owns the surface. There is no “bound”.

but has a cause of action against B. A has the right to an injunction to prevent C from taking the minerals anyway.

That does not follow. That’s a procedural matter.

Such enforcement by A against C would not be aggression, and therefore does not violate NAP.

Right.

It is a question of resolving conflict over rivalrous resources. The difference between my example and the one you give above is that in my example, C is taking legal possession of property with limitations of use, while in your example, he tries to take possession of something in its entirety that he has no legal right to, or reason to believe he owns, and he just gets ejected.

“taking legal possession” is a legal-sounding concept that makes no sense and has no relevance. But okay.

In your example, we have no idea why he thinks he owns my house, but in mine, we see that he took possession of something legally, yet tried to gain more than he purchased. I agree it is a subtle difference, but it is rather critical when drawing a parallel to copyrights.

Fine, but taking-possession-legally is a nonsense term. He received a deed to certain property, and was confused as to what it covered. That is all.

Exactly, but I don’t understand why you are trying to split hairs. Substitute the pink slip for the deed and you have the same scenario. The question is HOW do you prove who has legal title.

The question of evidence and proof is not what IP is all about. this is ridiculous.

After all, C paid money, so he has a claim.

Paying money does not give you a claim.

Yes, we can agree this is the situation. It is a legitimate property right because you cannot explore and extract minerals on M unless you own the mineral rights on M. You cannot have mineral rights in M without M. Sorry, but I have to say it; mineral rights touch and concern M. That is why we can say they are “legitimate”.

They are legitimate because the mineral rights are a scarce resource, and A legitimately acquired them, and has evidence to that effect. It has nothing whatsoever to do with “touch and concern.”

I understand the issue of servitudes on movables is not settled. I say that actually, the law does allow this, but uses different terms to describe the situation. For chattel, the concept is “bailment”; possession is transferred, but ownership is not, and the bailor has specific limitations on use. He can legally possess it, even use it within certain limits, but he cannot alienate it (sale or gift or abandonment) because bailment is not ownership. That would be conversion, a form of theft and perhaps fraud.

That is why I think the concept of servitude can conceivably apply to movables, and that is one reason I used the concept of negative servitude to explain what IP rights do: they allow the rights holder to control (veto) how people use their property, both immovable and movable.

OK, but let me park my response here; yes and no. There are no deeds, but certainly patents are a form of “deed”.

and have nothing to do with books. And also are state creations, but above you said we were not assuming a state.

Commercially published books usually contain copyright notices with an attribution to the owner of the copyrights. There is a registration process available.

By the state copyright office. You said above you are omitting the state. So would there be a private copyright registration office? Only if copyright is a property right. So again, you are question begging.

Basically you view the book as partly owned by A, and C can only use A’s book with A’s consent.

I think this is wrong, as I’ve said. It is not a “co-ownership”. A owns what he owns, and C owns what he owns, nothing more or less; identical to the mineral rights example.

Which is also a co-ownership situation. But this is just a way of describing it. Call it a scarce object owned by C but burdened by some control right (a veto, I’d say) by A. Fine.

This co-ownership idea screws things up. Give it up. A and B were not co-owners of the book. B can sell his rights to the book to the extent he owns them.

There is nothing wrong with two people, M and N, co-owning something in a relationship that lets either of them sell their interest. In a sense this is what a joint stock company is.

A is not involved as long as B does not assume he has rights he does not. If B sells to C, either C “knows or should have known” about the limited title, or he was misled by B, but in either case, he cannot own more than B owned; B can only convey title equal to what he already owns.

Here I am not so sure. Suppose A owns a watch and sells it to B but “retains” the “right to tell time” with it. So B can use it for jewelry but is not permitted to look at it to tell the time. He can touch it in the dark, wear it and show off, but he can’t look at the face and tell the time. Now he loses it, and C finds it. Is the watch “missing” the “right to look at it”? If it is, and C uses it to tell the time fifty times until A (or B, whatever) reclaims it. Does C owe damages to A for using the watch to tell the time? Does he have to forget all those times? Suppose he used the watch to time some experiment and collect a bunch of data. Does he now have to destroy his data, or turn it over to A?

I would agree C has to return the watch to A (or B; whatever). But give up knowledge or financial benefits he gained while using the watch?

The problem is A is not worried about only B or C’s copying the book. He is worried about third parties D who never possess any property of A’s at all.

From here, you are opening new controversies. You are leaving the general case we have been discussing and introducing new facts.

Because showing that someone bound by contract (arguably B) or someone who has ownership of an owned scarce resource that is burdened by some servitude of another, is not enough to get you to some simulation of IP.

Suppose C reads aloud the book on his lawn and D hears it and records it. Now he has on his own property and in his own brain the information in the phsyical book owned by A-C, but D never has possessed that book-object. He only has information. He does not need A’s permission to use information.

Up to this point, what you describe is not a violation of a right to make copies, and fits well within the boundaries of fair use.

And if D puts it on the Internet and a million people start copying it….

He is free to impattern his own paper with those patterns and sell books in this way. Unlike in the book-copy case, and unlike the mineral rights case, where C needed permission of that scarce object’s owner to use it in some ways, here, D does not need permission because he is not using property owned by anyone else: he has never possessed or held the book, just as he has never stepped onto the land M to drill for oil.

I think you are making a huge leap of logic here that is not supportable from our agreements thus far.

Wrong. This is the flaw in your argument, so now you are are balking.

You are assuming that “to impattern” means something which you have not defined or specified. The general case is “direct copy”. To say that D makes a direct copy, you must assume that D has unnatural skills of recall, and can transcribe, word for word, in exact duplication of sequence, punctuation, etc. everything that he heard, sufficiently to make an exact copy from memory; 500 pages worth.

I just gave an example of D taping his neighbor C’s reading of it. By taping it he did not violate anyone’s rights. He did not use the property of A or C. Likewise, suppose some pirate copies the book and posts it on the Interent. There are now millions of copies of some data file out there. None of these files are owned by A. None of the servers on which they reside are owned by A.

You are beginning to discover, I hope, that my position has been perhaps a little more reasonable than you have allowed.

What you do not realize is this argument has been made for a long time and I am well familiar with it. It is exactly the argument Rothbard flirted with that I addressed in detail in several pages of analysis in my original AIP article. It’s right in there, in the “Contract vs. Reserved Rights” section. You are making the “reserved rights” argument which is simply confused and flawed. There is nothing new here at all.

Peter Surda July 9, 2011 at 4:02 am

Wildberry,

is copying an object a use of that object and if yes, why?

Wildberry July 10, 2011 at 11:27 am

Peter Surda July 9, 2011 at 4:02 am

Wildberry,
is copying an object a use of that object and if yes, why?

Yes. Because an act of copying (exact duplication) cannot be accomplished without the object itself.

Stephan Kinsella July 10, 2011 at 12:19 pm

Wildberry: “an act of copying (exact duplication) cannot be accomplished without the object itself.”

Notice you avoided being clear: without the object being USED? or without it EXISTING? If you said the former, this would indeed imply use of it, but then, you could not establihs it: I can see a statue across the street in my neighbor’s yard and “copy” it *without using it*–without committing any trespass on the owner of the statue. Same with a book, as I’ve explained. And sure, ith as to have existed to copy it, but so what? that’s what learning is, that’s what all competitition and emulation on the market involves.

Wildberry July 10, 2011 at 2:46 pm

Stephan Kinsella July 10, 2011 at 12:19 pm

Wildberry: “an act of copying (exact duplication) cannot be accomplished without the object itself.”

Notice you avoided being clear: without the object being USED? or without it EXISTING? If you said the former, this would indeed imply use of it, but then, you could not establihs it: I can see a statue across the street in my neighbor’s yard and “copy” it *without using it*–without committing any trespass on the owner of the statue. Same with a book, as I’ve explained. And sure, ith as to have existed to copy it, but so what? that’s what learning is, that’s what all competitition and emulation on the market involves.

This is exactly what I’m talking about with your argumentation style, it is dishonest.
Naturally I would not claim some use unless what is being used existed. It is ridiculous to object on the basis that I am stupidly claiming that by “use” I could mean “exist”.

If you want to dispute my use of the word “copy”, why not make your objection within the context being offered; duplication of a manuscript or book. Why do you introduce “seeing and remembering” as a rebuttal to my use of the word to describe the obvious act of direct copying.

If you do not like my usage, offer your own. Explain what YOU mean when the act is “duplicating something that exists” in exact reference to the original; this act requires the USE of the original to make the duplicate. This is the unique and critical feature of “copy” in this context, and perhaps the only thing about Intellectual Property that makes it unique compared to other goods; the nature of the act of copying.

From land to IP, the act of copy gets easier. That is rather important, don’t you think? So unless and until you make a commitment to what that act is, within the context of what we are discussing (manuscripts), then you will always be free to “pull another rabbit out of the hat” as Kid Salami has said.

When you not attempt to rebut my description of the operation of “copy”, you say that a) you can see a statue across the street; b) remember the image of it in your mind and c) duplicate it exactly with your own means (materials and tools, yes, but what about artistic skills? Are you sure it is an exact duplicate? How do you know? Etc. etc…) In any case, what does this have to do with putting book in a Xerox machine and duplicating it?

For the record, you have never explained how party B can copy manuscript M without every “using” it, unless you retreat to the ridiculous assertion that someone can actually hear someone read a 500 page novel, and create an exact copy from memory. While it may be possible to duplicate certain elements of a novel in this way, it would be a far cry from a duplicate unless you assume extra-human skills.

As you know, any FIXATION in another medium is an act of copy, if the only difference between M and M(copy1) is the medium. As with making a copy from paper to paper, the paper is a different resource, since two manuscripts cannot exist on the same sheets of paper. The concept is “duplicate”.

If you don’t accept this, then start with M and tell me how a duplicate can be made without access to M. If that use results in a duplicate, it is an act of copy (as if this is a metaphysical question beyond the common sense of a 3rd grader)

Even in your dishonest example, seeing a statue is a USE of some kind. The question of whether that use is of a nature that can be “reserved” is an open issue. Not all uses are “rights of use”, just like in land. You may “look” at land without violating any rights of the owner. So? If it is an objection for manuscripts, it is one for land as well. It is not, as you know, an asserted right in either land context or a copyright context.

To imply otherwise is dishonest. So your leap to “competition” and “use of knowledge” is also completely dishonest. You know that not all uses are “property rights” and that copyright law (as the framework that I am using, for simplicity, to define “copy” and “use”) acknowledges this in the treatment of what is the subject matter of this property right (i.e. not “ideas”) and what uses are permitted as “fair use” of the property (i.e. provisos as to what “uses” are “ownable”).

You can do this all day long, and I can keep pointing out your use of slight-of- hand to avoid being trapped by your own arguments, but I will run out of gas before you do. For you, this is a career issue, for me it is an interesting past time. You have much more at stake, and apparently are willing to go to great lengths to justify your conclusions.

To anyone that is willing and has the time to pay attention, your incoherence is obvious. But I believe you are trying to make a name for yourself in the Ancap hall of fame by being clever at the game “hide the weenie”, which understandably, baffles the laymen, just like “magic” baffles the ignorant. Charlatans always are discovered by history, sooner or later.

Stephan Kinsella July 10, 2011 at 3:15 pm

Wildberry: “This is exactly what I’m talking about with your argumentation style, it is dishonest.
Naturally I would not claim some use unless what is being used existed. It is ridiculous to object on the basis that I am stupidly claiming that by “use” I could mean “exist”.

If you want to dispute my use of the word “copy”, why not make your objection within the context being offered; duplication of a manuscript or book. Why do you introduce “seeing and remembering” as a rebuttal to my use of the word to describe the obvious act of direct copying.

If you do not like my usage, offer your own. Explain what YOU mean when the act is “duplicating something that exists” in exact reference to the original; this act requires the USE of the original to make the duplicate. This is the unique and critical feature of “copy” in this context, and perhaps the only thing about Intellectual Property that makes it unique compared to other goods; the nature of the act of copying. ”

this is all absurd. It is not dishonest at all. I can copy the copy of E.T. (movie) on Pirate Bay right now without accessing any physical object owned by Spielberg. I can copy a book by listening to (and remmebering or recording) the sounds I hear from someone reading it.

Kid Salami: As for the servitude issue, I simply said I did not concede that servitudes on movables are legitimate; I am open on this issue. In any case my objection to IP does not rest on objecting to servitues in movables. Even if you grant they are possible, IP is still impossible.

Wildberry July 10, 2011 at 5:58 pm

@Stephan Kinsella July 10, 2011 at 3:15 pm

this is all absurd. It is not dishonest at all. I can copy the copy of E.T. (movie) on Pirate Bay right now without accessing any physical object owned by Spielberg. I can copy a book by listening to (and remmebering or recording) the sounds I hear from someone reading it.

OK, genius. Tell me how Pirate Bay acquired a copy for you to copy? If it is in fact a “copy” of ET, what is it copied from? Is the source of the one you acquire from PB simply lost in antiquity such that its original owner cannot be identified? Who are you trying to fool with this amateurish BS?

Listening to a book and remembering is not a “use” related to coping. Where is the tangible duplicate? Can you read minds now? It is not what is in my mind that is relevant, it is the existence of a duplicate. Where is it? You say it is in your mind. How can you prove that to me. Saying so is not enough, you have to show me. Can you?

If you record someone reading a book, you are simply making copies on different medium; it is the act of fixation that creates a copy, as if a 5th grader couldn’t figure this out. Are you smarter than a 5th grader? I am.

Do you “believe” in the concept of “copying”? I own a book. I put it in a copying machine and now I have two, both on paper, but different sheets of paper. What happened? Magic?

The Emperor INSISTS he is wearing clothes. That just makes it all the funnier.

Peter Surda July 11, 2011 at 2:54 am

Wildberry,

Naturally I would not claim some use unless what is being used existed.

Let me bring the thread back to the actual issue: is the existence of the act of authoring a sufficient condition for the act of copying to be a violation of the author’s rights?

Kid Salami July 7, 2011 at 12:19 pm

Peter – I’ll reply to my threads when I get a chance, but the posturing here is just getting embarrassing. That question from Kinsella was ridiculous, it was like a newbie question – except it wasn’t, for the exact reason Wildberry said.

While looking for another quote, I just saw a quote on the Schulman thread. Kinsella’s position is, clearly, that you can homestead a “use” of an object eg.

“Say people routinely walk over a path from point A (their village) to point B (watering hole). You can say they have homesteaded at least that use of the propety. ”

and that you can just say this without any problem or exposition, it’s just obvious that this is ok.

But he said to Schulman:

“Stephan Kinsella April 10, 2011 at 3:55 pm

MCP. Wow. Now there are rights in the “properties” of things. There is no end to where this is heading, as things have lots of properties!”

How or why is one obvious and the other worthy of a “wow”? Because there is no core here, anything will do so long as it beats off this ball, by the time the next one comes everyone will have forgetten. Everyone except the people who go back and read it.

Even if there is a case to be made (which I don’t rule out) it’s clear this isn’t it – this is just a transparent shell game.

Peter Surda July 7, 2011 at 2:06 pm

Kid Salami,

while I can’t speak for Stephan, I suspect it’s the inadequacies of the language that are causing a problem in understanding. The two claims that you equate, although they use the same (or similar enough) words, have distinct meanings.

So, let me try to formulate what I think Stephan meant.

Co-ownership/partial homesteading: this refers to a subset of property rights. “Owning uses of an object” means that you do not need to have the full property rights if you don’t want to, but can choose to have only partial ones instead.

Rights in properties/MCP: refers to a a superset of property rights. “Owning properties of an object” means that in addition to having property rights to the integrity of the object, you also have some rights in other objects due to them being connected on an abstract level.

The first example refers to a situation where you decide not to exercise your full rights, and allow them to “pass” to others instead. The second example refers to a situation where you claim that you have more rights than your full rights.

I hope it’s clear now.

Wildberry July 7, 2011 at 2:19 pm

Peter,

I think it is better to let Stephan speak for himself. At least he cannot claim to be ignorant of the principles of property law, which you misstate here badly.

Under no circumstances, either under positive property law, or any libertarian principles I am aware of, can you “claim” more property rights than you actually have.

Consequently, you cannot convey more rights than you have. You can, however, convey some rights you have, while retaining others.

The classic example is an owner of land that conveys the land but retains the mineral rights. He cannot convey his own land, And the mineral rights of someone else, since he doesn’t own those.

Peter Surda July 7, 2011 at 2:31 pm

Wildberry,

Under no circumstances, either under positive property law, or any libertarian principles I am aware of, can you “claim” more property rights than you actually have.

Just to confirm: if you do not have a right not to have your book copied, you cannot gain this right by entering into a contract?

Consequently, you cannot convey more rights than you have. You can, however, convey some rights you have, while retaining others.

What I would like to know then is, do you have a right not to have your book copied?

The classic example is an owner of land that conveys the land but retains the mineral rights. He cannot convey his own land, And the mineral rights of someone else, since he doesn’t own those.

So, is the reason why you can retain the right in the minerals, that you already have the right to the minerals prior to entering into a contract? Would I be then right to say that unless you already have a right not to have your property copied, you cannot retain such a right by entering into a contract?

Wildberry July 7, 2011 at 4:22 pm

Just to confirm: if you do not have a right not to have your book copied, you cannot gain this right by entering into a contract?

Wrong. You may gain rights by entering into a contract with someone who already has them.

What I would like to know then is, do you have a right not to have your book copied?

If it is in fact mine, then yes. Why wouldn’t I?

So, is the reason why you can retain the right in the minerals, that you already have the right to the minerals

This much is correct.

Would I be then right to say that unless you already have a right not to have your property copied, you cannot retain such a right

If you have it, you may retain it unless you transfer it to someone else.

Why wouln’t you have a right to withhold certain rights of use of your own property as a condition of transfer to another? Don’t you believe in the rights of exclusive use of private property?

Kid Salami July 7, 2011 at 5:34 pm

I could have also come up with that kind of post-hoc rationalisation – I specifically didn’t say that they were in direct conflict, and agree they are two different things. But they are related – a guaranteed use of some property by one person means a “property” of the property (if you see what I mean) of another person must be maintained (eg. a pathway). So implied in the “use” comment is an acknowledgement at least that “properties” of things have a legal status etc. (and use requires the notion of coownership, which is “fishy”)But there is no analysis to investigate this – just a wave of the hand. Its the tone, the asymmetry – the fact that every single tiny step – even when there is a tacit admission that there might be some more exposition required – is like blood from a stone. This defensiveness is really quite telling.

Peter Surda July 7, 2011 at 5:41 pm

Wildberry,

You may gain rights by entering into a contract with someone who already has them.

In order for someone else to have the right not to have your book copied, don’t they need to first obtain that right from you? Although this is kind of redundant, because you made it sufficiently clear the right not to have copied is not a consequence of servitudes and covenants, so I don’t actually need you to answer this.

If it is in fact mine, then yes. Why wouldn’t I?

Ok, then, if you assume that you already have a right to not have your book copied, can you prove that you have that right? Wouldn’t that be circular reasoning?

If you have it, you may retain it unless you transfer it to someone else.

Great. So then, if you already have the right, isn’t then entering into a contract, servitude or covenant redundant?

Why wouln’t you have a right to withhold certain rights of use of your own property as a condition of transfer to another?

Well, for example because the word “use” is too vague for a solid framework. But we’ll see that soon enough.

Don’t you believe in the rights of exclusive use of private property?

So, it is not possible to use someone else’s property without his permission?

Peter Surda July 8, 2011 at 4:06 am

Kid Salami,

what are you talking about? You make no sense. The IP proponents deliberately use vague language, metaphors, and in general, faulty logic, and when we expose that, it’s our fault?

Kid Salami July 8, 2011 at 5:14 am

Peter – i think what I said, that once you say you can homestead “uses” of things then this has consequences that are not (and have not been) explored systematically but are defended one at a time on an ad-hoc basis without a coherent vocabulary or framework in place, is true.

But I will accept that it was something of a non-sequitur. My brain is fried on this for now – I think I’ve changed my mind about the sincerity of one of the participants in this discussion.

Peter Surda July 8, 2011 at 5:17 am

Kid Salami,

so if you have a right to A, then it is inconceivable that you have a right to a subset of A? What is your objection in the first place?

Kid Salami July 10, 2011 at 2:26 pm

I have many. But to keep it simple, it is murky – an argument raised serially against IP. i’ve been told – 1 million times – that its always about who owns what tangible object (remember the owning photons discussion?). But now, from the clear blue sky, you can homestead “uses” of things only? If I homesteaded the subset of the full rights to some land – the right to pass through it, say – then if the guy who plants crops on it is not to be a trespasser, how can i indicate this to him? How can anyone be sure they can homestead anything if the “user” of it can be remote? There is no “fence” equivalent here. It is just more ad-hoc nonsense.

Peter Surda July 10, 2011 at 2:49 pm

Kid,

so, you don’t worry how to homestead the right to copy, you worry how to sell it and indicate this to others? That’s your objection?

Stephan Kinsella July 10, 2011 at 6:46 pm

Wildberry:

this is all absurd. It is not dishonest at all. I can copy the copy of E.T. (movie) on Pirate Bay right now without accessing any physical object owned by Spielberg. I can copy a book by listening to (and remmebering or recording) the sounds I hear from someone reading it.

OK, genius. Tell me how Pirate Bay acquired a copy for you to copy? If it is in fact a “copy” of ET, what is it copied from?

Here is your basic problem. If you are employing a means–a scarce resource–that resource by its nature could be claimed by another. Thus you own it–are justified in using in as a means in action–only if you have a better claim than the other claimants–you have an earlier title, first use, whatever. There is a need to figure out title only b/c people can contest it!

But who of us knows where our ideas came from? Who cares? My using information gleaned from the corpus of human knowledge harms no one; I am free to use it. I don’t need to account for it, justify it, or show that I own it, as no one can contest it. If A says he owns the information he already has it; he just wants a monopoly over it. He wants to prevent me from using it, but not because my use interferes with his as in the case of scarce goods.

I can use a given resource only by invading it and trespassing against the wishes of the owner of it. But I can “use” a given pattern of information without doing this. If I see a copy on Pirate Bay it is a patterning on servers *not owned by* the original impatterner. Maybe someone had to breach a contract to put it there (but usually not). But even if so, so what? it is not the impatterner’s property. He cannot stop others.

Is the source of the one you acquire from PB simply lost in antiquity such that its original owner cannot be identified? Who are you trying to fool with this amateurish BS?

Listening to a book and remembering is not a “use” related to coping. Where is the tangible duplicate? Can you read minds now? It is not what is in my mind that is relevant, it is the existence of a duplicate. Where is it? You say it is in your mind. How can you prove that to me. Saying so is not enough, you have to show me. Can you?

You are babbling and not worth replying to. totally useless, like a flat-footed applicant to the Spanish Army.

If you record someone reading a book, you are simply making copies on different medium; it is the act of fixation that creates a copy, as if a 5th grader couldn’t figure this out. Are you smarter than a 5th grader? I am.

Yes, this is an act of copying, but it does not require use of the object being copied. There is no trespass. This is just an instance of the general phenomenon of “learning,” which I have gleaned you IP statists hate. Understandably.

Do you “believe” in the concept of “copying”?

Yes; and emulation, competition, learning. I know you hate these things. For that I feel very sorry for you.

I own a book. I put it in a copying machine and now I have two, both on paper, but different sheets of paper. What happened? Magic?

suppose you put it on a scanner, and produce a PDF “file”, a series of bits; and you send them on the Internet. Now millions have coipes of this pattern on their hard drives. Who owns those hard drives? I know the libertarian answer. And your answer is: the IP creator owns a partial interest in all those hard drives. Horrific and despicable.

Wildberry July 10, 2011 at 10:52 pm

@Stephan Kinsella July 10, 2011 at 6:46 pm

Here is your basic problem. If you are employing a means–a scarce resource–that resource by its nature could be claimed by another. Thus you own it–are justified in using in as a means in action–only if you have a better claim than the other claimants–you have an earlier title, first use, whatever. There is a need to figure out title only b/c people can contest it!

OK, you want a copy of ET. Steven Spielberg claims he owns it. You say Pirate Bay does and they have agreed to give you a copy. How do you claim to have better title to it than him? Do you claim to have an “earlier title”? Apparently there is a need to figure out title, because you and Steven Spielberg seem to be contesting it!

But who of us knows where our ideas came from? Who cares?

Who knows? For all we know, Stephan Kinsella made ET! How can anyone possibly tell where ET came from? If someone says you have their property, is your response “who cares?” That’s real. Speaking of real, are you for real?

Hang on everyone, we’re headed for a sharp left turn!!

My using information gleaned from the corpus of human knowledge harms no one; I am free to use it. I don’t need to account for it, justify it, or show that I own it, as no one can contest it. If A says he owns the information he already has it; he just wants a monopoly over it. He wants to prevent me from using it, but not because my use interferes with his as in the case of scarce goods.

What do you mean “using information”? Will you commit to a meaning that I can hold you to later? When you download ET from PB, you are just sweetly and innocently “using information” from the “corpus of human knowledge?”

You would not dare to make such a ridiculously insane statement in the context of any other purported property rights. ET is just a free good in the “corpus of human knowledge?” How about a sequence of images constructed at great expense and with great technical skill to convey a complex story involving creative and unique characters and plots that humans enjoy? You don’t think such an accomplishment is a “scarce resource”?

Hey, Spielberg has a copy! What is he whining about? He can watch it anytime he wants, just not maybe on a very big screen, since he is now just a poor Jewish boy. Imagine him having the audacity to insist on having a monopoly over his property? But, (and I can’t figure out whether I like Kid’s “Chewbacca defense” or the “Turrets Syndrome” better), “IDEAS ARE FREE”, right?

I can use a given resource only by invading it and trespassing against the wishes of the owner of it.

You think Spielberg is pleased you are sucking his property through your relationship with PB? You think this is his wish? Wait, I have a solution; we’ll just tell him we couldn’t tell ET was from him, since information is part of the “corpus” of all information, and anyone can have an idea. Your idea was to take something that is not yours, was never yours, comes from someone else, and this someone has not right making claim to it on the basis of his earlier and better title to it than you. PROBLEM SOLVED!

But I can “use” a given pattern of information without doing this. If I see a copy on Pirate Bay it is a patterning on servers *not owned by* the original impatterner.

Yes, Speilberg simply “impatterned” some photons on film and then digitized them, and sent them to you for free. YEA Socialism!! To each according to his need, and you need ET!

Maybe someone had to breach a contract to put it there (but usually not). But even if so, so what? it is not the impatterner’s property. He cannot stop others.

Another rabbit comes out of the hat! Now you are saying that property rights are determined by whether an owner of them can stop people from trespassing or stealing.? That is the libertarian principle you were referring to when you said you were a “principled libertarian”? This entitles you to property by fiat? And you said the STATE was dripping with evil. Go figure.

“Is the source of the one you acquire from PB simply lost in antiquity such that its original owner cannot be identified? Who are you trying to fool with this amateurish BS?

Listening to a book and remembering is not a “use” related to coping. Where is the tangible duplicate? Can you read minds now? It is not what is in my mind that is relevant, it is the existence of a duplicate. Where is it? You say it is in your mind. How can you prove that to me. Saying so is not enough, you have to show me. Can you?”

You are babbling and not worth replying to. totally useless, like a flat-footed applicant to the Spanish Army.

Do I understand that as a “no”? Thought so. Just total babble from the befuddled layman? You are like a politician, who no matter how many times or how many ways you ask, you can never get a straight answer. It was not a difficult question; yes or no would do it. Instead you try to take your ball and go home.

“If you record someone reading a book, you are simply making copies on different medium; it is the act of fixation that creates a copy, as if a 5th grader couldn’t figure this out. Are you smarter than a 5th grader? I am.”

Yes, this is an act of copying, but it does not require use of the object being copied. There is no trespass. This is just an instance of the general phenomenon of “learning,” which I have gleaned you IP statists hate. Understandably.

That’s funny, ‘cause I don’t understand it. What are you recording, genius? Where is the “object” you are recording from? When you finish, is the tape blank? NO? What did you record? Nothing? You just “learned” it? I HATE that, for sure. You hate the State, I hate learning! You caught me!

“Do you “believe” in the concept of “copying”?”

Yes; and emulation, competition, learning. I know you hate these things. For that I feel very sorry for you.

OK, we can leave emulation, competition and learning for another time. What is “copying”? If you believe it exists tell me how I can have a manuscript, and make a copy. What is that ?

“I own a book. I put it in a copying machine and now I have two, both on paper, but different sheets of paper. What happened? Magic?”

suppose you put it on a scanner, and produce a PDF “file”, a series of bits; and you send them on the Internet. Now millions have coipes of this pattern on their hard drives. Who owns those hard drives? I know the libertarian answer. And your answer is: the IP creator owns a partial interest in all those hard drives. Horrific and despicable.

Suppose I do. What have I done? What is the similarity between those “bits” that the scanner produced and the object that was scanned? Nothing? NO RELATIONSHIP WHATSOEVER? You mean that no matter what you scan, you are just going to get 1s and 0s that have no meaning beyond “Yes” and “No”? Like, say a replicator from Star Trek, but in reverse? Take a book and destroy all meaning by turning it into 1s and 0s, and violas! IDEAS ARE FREE!!

I just have to ask, though. What do you do with those free bits you have? Do you put them to any particular use? Can you describe the use, and tell me how it is different than the use you would put to, say, the original you copied from? Anything you can put your finger on?

Oh, and you are wrong about the hard drives. I don’t care to own a piece of other’s hard drives. I care about owning my own things, and having recourse against those who would take what is mine. It’s called private property. I’m sure you’ve heard of it. It’s the latest thing to sweep the country.

Here is a story for you. A bank robber steals $1,000,000 in dollar bills. He flies over some highly populated area, say AT&T park in San Francisco during a sold out Giant’s game. Dumps them overboard and every fan in the house gets at least one or more bills, say 50,000 fans.

According to you, everyone now owns that money because the bank can do nothing to stop them from spending them?

Can you point me to the book or quote or something from Rothbard or Hoppe that explains this to me? I’m a little confused about the principles of libertarianism you are referring to here.

Honestly, you should be ashamed…

Stephan Kinsella July 10, 2011 at 11:58 pm

Wildberry:

Here is your basic problem. If you are employing a means–a scarce resource–that resource by its nature could be claimed by another. Thus you own it–are justified in using in as a means in action–only if you have a better claim than the other claimants–you have an earlier title, first use, whatever. There is a need to figure out title only b/c people can contest it!

OK, you want a copy of ET. Steven Spielberg claims he owns it. You say Pirate Bay does and they have agreed to give you a copy. How do you claim to have better title to it than him?

I don’t need title to it. I won’t want title to it. See you are being disingenuous and equivocating again. You are using “copy” ambiguously. I don’t cliam any title to anything. I am just using information to impattern my own property.

Do you claim to have an “earlier title”? Apparently there is a need to figure out title, because you and Steven Spielberg seem to be contesting it!

Information is not scarce, and thus there can be no contest over it.

But who of us knows where our ideas came from? Who cares?

Who knows? For all we know, Stephan Kinsella made ET! How can anyone possibly tell where ET came from? If someone says you have their property, is your response “who cares?” That’s real. Speaking of real, are you for real?

What exactly is the question?

Hang on everyone, we’re headed for a sharp left turn!!

My using information gleaned from the corpus of human knowledge harms no one; I am free to use it. I don’t need to account for it, justify it, or show that I own it, as no one can contest it. If A says he owns the information he already has it; he just wants a monopoly over it. He wants to prevent me from using it, but not because my use interferes with his as in the case of scarce goods.

What do you mean “using information”? Will you commit to a meaning that I can hold you to later? When you download ET from PB, you are just sweetly and innocently “using information” from the “corpus of human knowledge?”

Yes. It’s public.

You would not dare to make such a ridiculously insane statement in the context of any other purported property rights. ET is just a free good in the “corpus of human knowledge?”

Yes, any public information is a free good, by classification. Obviously this fact upsets you. Understandably, since it undercuts your IP arguments. I know you know you are losing, and this upsets you.

How about a sequence of images constructed at great expense and with great technical skill to convey a complex story involving creative and unique characters and plots that humans enjoy? You don’t think such an accomplishment is a “scarce resource”?

No, it’s not scarce (rivalrous), as any economist will admit.

Hey, Spielberg has a copy! What is he whining about? He can watch it anytime he wants, just not maybe on a very big screen, since he is now just a poor Jewish boy. Imagine him having the audacity to insist on having a monopoly over his property? But, (and I can’t figure out whether I like Kid’s “Chewbacca defense” or the “Turrets Syndrome” better), “IDEAS ARE FREE”, right?

Ideas are not property, if that is what you are asking (and I thought you had earlier protested the suggestion that you IP socialists treat ideas as property… now you are getting indignant at the suggestion that ideas are not property).

I can use a given resource only by invading it and trespassing against the wishes of the owner of it.

You think Spielberg is pleased you are sucking his property through your relationship with PB? You think this is his wish? Wait, I have a solution; we’ll just tell him we couldn’t tell ET was from him, since information is part of the “corpus” of all information, and anyone can have an idea. Your idea was to take something that is not yours, was never yours, comes from someone else, and this someone has not right making claim to it on the basis of his earlier and better title to it than you. PROBLEM SOLVED!

You are not making any coherent argument or claim here. Typical of you guys to resort to emotion and irrationality.

Peter Surda July 11, 2011 at 3:07 am

Wildberry,

You say Pirate Bay does and they have agreed to give you a copy.

You do realise that TPB does not actually have any copies, right? Let me ask you then: if you know about a property rights violation, and inform someone about it, is that a violation of property rights?

Listening to a book and remembering is not a “use” related to coping. Where is the tangible duplicate?

So, if you have a good memory, you are permitted to copy, but if you use tools to assist you, you are not? In The Book of Eli, Denzel Washington’s character dictated the bible from his mind, his copy of the book being stolen from him previously. Would that be that copying?

Stephan Kinsella July 11, 2011 at 8:00 am

Peter–good example re the book of eli. and of course before the widespread use of recorded media like paper stories were handed down orally–the bible itself being a good example.

This cartoon reminds me of the position that Wildberry and his ilk ultimately have to take: http://c4sif.org/2011/07/ip-cartoon-copyright-in-your-head/

Wildberry July 11, 2011 at 10:40 am

@Peter Surda July 11, 2011 at 3:07 am

You do realise that TPB does not actually have any copies, right?

Do you actually think this is relevant to anything? Whether TPB retains a copy or simply is a gateway for exchange between users, does it make a difference? What is a copy?

So, if you have a good memory, you are permitted to copy, but if you use tools to assist you, you are not? In The Book of Eli, Denzel Washington’s character dictated the bible from his mind, his copy of the book being stolen from him previously. Would that be that copying?

I would say no, but what do you say? If something goes from a tangible fixation to your mind, where is the copy? How can I know you have one? Can you show me? I asked Kinsella this same question, which he did not answer. I know how you feel about confrontation, so maybe you could prod him along.

@ Stephan Kinsella July 11, 2011 at 8:00 am

This cartoon reminds me of the position that Wildberry and his ilk ultimately have to take: http://c4sif.org/2011/07/ip-cartoon-copyright-in-your-head/

Is this supposed to stop me in my tracks? Appealing to authority is one thing, but a cartoon? You are really reaching for support, now! Do you have one of these mind-detector machines? I would like to see what you have in your mind, it’s a little murky from here…and I know you would not resort to fantasy to make your case.

This is what you sound like to me:

“Ideas are free. Ideas are free. Ideas are free. Quantas. Definitely Quantas. It’s time for Judge Wapner. Can’t miss Judge Wapner. Rainman, can I drive? I’m definitely a good driver. Definitely.”

Wildberry July 11, 2011 at 11:21 am

@Stephan Kinsella July 10, 2011 at 11:58 pm

I don’t need title to it. I won’t want title to it. See you are being disingenuous and equivocating again. You are using “copy” ambiguously. I don’t cliam any title to anything. I am just using information to impattern my own property.

Yes, and you are not really “using” this “information” to make a copy of the original source because, because…..why is that again? Can you remind me of what an unambiguous meaning of “copy” is? May we can start from there. Remember; be careful, because I am going to hold you to whatever you say it is. K?

Information is not scarce, and thus there can be no contest over it.

Yes but ET is, and Steven wants Stephan to prove that his “information is not scarce”. He is definitely contesting your use of it. Definitely.

But who of us knows where our ideas came from? Who cares?

“Who knows? For all we know, Stephan Kinsella made ET! How can anyone possibly tell where ET came from? If someone says you have their property, is your response “who cares?” That’s real. Speaking of real, are you for real?”

What exactly is the question?

It is not really a question, but a sarcastic response to make my point, which is that your original comment is ridiculous. As if you don’t know? If you find a book on a bench, who knows if you are the author or not, you might be and just forgot, like a Jason Bourne kind of thing? That is your argument?

Yes. It’s public.

What does “public” mean and how do you know it is “public”. Surely we must have thought of some method or device to sort out what is “public” and what is “private”. Help me out here…

“You would not dare to make such a ridiculously insane statement in the context of any other purported property rights. ET is just a free good in the “corpus of human knowledge?”

Yes, any public information is a free good, by classification. Obviously this fact upsets you.

Yes, because I’m trying to figure out what “public information” is, how it gets “classified” and how you know it is a “fact”. Did I miss the part where you are ultimate arbiter of all “facts”?

Understandably, since it undercuts your IP arguments. I know you know you are losing, and this upsets you.

Losing? There is no winning and losing here. How can you tell if you are “winning” and I am “losing”. These seem like ambiguous terms to me. Can you be a little more precise?

If you mean that you can circle around your conclusions with any manner of nonsense until I tire of sparing with you, then you are definitely winning. Definitely. If you mean that over time, society selects those conventions that serve them in some purpose, and that the principle of IP, as such a convention, is accepted by the vast majority of rational people in the world, then you have definitely already lost. Definitely.

“How about a sequence of images constructed at great expense and with great technical skill to convey a complex story involving creative and unique characters and plots that humans enjoy? You don’t think such an accomplishment is a “scarce resource”?”

No, it’s not scarce (rivalrous), as any economist will admit.

Of course, you cannot show, using consistent principles and logic, how you get from here (film in the can) to there (ideas are free). But who cares? Kinsella says it’s a “FACT”. So there!

Also, it is hilarious that you would invoke “any economist” when you casually dismiss the positions of one Ludwig von Mises for having being made his analysis of the topic “before the internet”. What a hoot!!

“Hey, Spielberg has a copy! What is he whining about? He can watch it anytime he wants, just not maybe on a very big screen, since he is now just a poor Jewish boy. Imagine him having the audacity to insist on having a monopoly over his property? But, (and I can’t figure out whether I like Kid’s “Chewbacca defense” or the “Turrets Syndrome” better), “IDEAS ARE FREE”, right?”

Ideas are not property, if that is what you are asking (and I thought you had earlier protested the suggestion that you IP socialists treat ideas as property… now you are getting indignant at the suggestion that ideas are not property).”

What a shyster. Ideas ARE free. The use of ET is not. The duplication of ET is not. The distribution of ET is not. Could there be, just possibly, a distinction to be drawn?

I can use a given resource only by invading it and trespassing against the wishes of the owner of it.

“You think Spielberg is pleased you are sucking his property through your relationship with PB? You think this is his wish? Wait, I have a solution; we’ll just tell him we couldn’t tell ET was from him, since information is part of the “corpus” of all information, and anyone can have an idea. Your idea was to take something that is not yours, was never yours, comes from someone else, and this someone has not right making claim to it on the basis of his earlier and better title to it than you. PROBLEM SOLVED!”

You are not making any coherent argument or claim here. Typical of you guys to resort to emotion and irrationality.

I am not making an argument here, but I’m gratified you recognize as much. When your own argument is reflected back to you, even you think it sounds ridiculous, emotional and irrational. Thank you for making my point, however inadvertent.

Peter Surda July 11, 2011 at 11:24 am

Wildberry,

Whether TPB retains a copy or simply is a gateway for exchange between users, does it make a difference?

In other words, if TPB knows the IP addresses of people that are violating property rights, and discloses this to someone else, then they are violating property rights? That’s odd, because a month or two ago you said exactly the opposite, that it is keeping the information secret (from the police) that is illegal. Can you clarify this again maybe? If I know about a crime, which is the action that avoids property rights violation: disclosure or secrecy?

What is a copy?

I know what a copy is. Do you? What is it then?

I would say no, but what do you say?

I would then say that you are contradicting yourself, by simultaneously claiming that the causal relationship between authorship and copying is, and is not, a sufficient condition for a claim over the copy. So, is it or is it not, Wildberry?

If something goes from a tangible fixation to your mind, where is the copy?

So your mind is not a tangible fixation? The neurons do not store information?

How can I know you have one?

In order to answer this, you would first need to define copy. Have you yet provided such a definition?

I asked Kinsella this same question, which he did not answer. I know how you feel about confrontation, so maybe you could prod him along.

If you do not know how to determine what is a copy and what not, why are you blaming this on others?

Wildberry July 11, 2011 at 12:18 pm

@Peter Surda July 11, 2011 at 11:24 am

“[Surda], I knew [Sacrates]. I served with [Sacrates]. [Sacrates]. was a friend of mine. [Surda], you’re no [Sacrates].” – Senator Lloyd Benson

http://www.youtube.com/watch?v=O-7gpgXNWYI

Stephan Kinsella July 11, 2011 at 1:00 pm

Wildberry:

I don’t need title to it. I won’t want title to it. See you are being disingenuous and equivocating again. You are using “copy” ambiguously. I don’t cliam any title to anything. I am just using information to impattern my own property.

Yes, and you are not really “using” this “information” to make a copy of the original source because, because…..why is that again? Can you remind me of what an unambiguous meaning of “copy” is? May we can start from there. Remember; be careful, because I am going to hold you to whatever you say it is. K?

I am not invested in categorizing things as copying since I don’t want to prohibit it. You do. YOu are opposed to it. Obviously this makes it look like you might also hate competition, learning, and emulation, so you have to find a distinction, and you have to anchor this in property so you struggle to find a coherent theory.

Every day of your life you use a huge amount of information and knowlege you have learned in your life, most of it transmitted and discovered by others. YOu don’t seek to prove you “own” all this info first, do you?

All I care about is a peaceful world where people respect property rights–so conflict can be avoided and we can have peace and productive use of resrouces, leading to prosperity. I am aware of the role of scarce goods in production and action, and of knowledge; knowledge is learned and acquired in various ways, and used to guide action–to select ends, and means to achieve the ends. I don’t care how you classify the knowlege or its acquisition–whether you call it “discovery” or “invention” or “observation” or “learning” or “copying” or “remixing” or”borrowing” or “inspired by”, because none of it matters–since ideas and knowlege are outside the domain of property and conflict.

You are making a transparently disingenuous argument. You try to define manuscripts and copies equivocally; you try to use “copy” in one sense to imply possession or use of a physical object owned by someone else, in other times you use it to sneak in your insane and bizarre assumption that owing an object gives you some right extending to the ends of the universe to stop others from making something similar to it. There are plenty of examples of how you can observe someone else’s owned object and thus learn how it is shaped or arranged, without possessing it in a way that interferes with the owner’s use of it–that is, without committing trespass. I have given several examples. You just ignore them. If I take a photo of a statue in your yard, or a painting visible thru your window, or record (or memorize) your recitation of a poem, or learn how your song sounds from listening to you play it–I am not using any scarce resources that you own. I am not possessing them or committing trespass. I am simply acquiring information about the world in my peaceful, rightful activities, and you have no right whatsoever to whine about what information I have in my head or how I use it.

Information is not scarce, and thus there can be no contest over it.

Yes but ET is, and Steven wants Stephan to prove that his “information is not scarce”. He is definitely contesting your use of it. Definitely.

No he is not. He is contesting my use of my body and scarce goods I own-that is, he is using his IP excuse to assert property rights in my own property. Or if he sues me for damages he is claiming ownership of some of my money, anohter scarce good.

But who of us knows where our ideas came from? Who cares?

“Who knows? For all we know, Stephan Kinsella made ET! How can anyone possibly tell where ET came from?

My point is that you don’t NEED To prove you “own” information in the first place to use it. If you have knowlege you are free to use it–period.

It is not really a question, but a sarcastic response to make my point, which is that your original comment is ridiculous. As if you don’t know? If you find a book on a bench, who knows if you are the author or not, you might be and just forgot, like a Jason Bourne kind of thing? That is your argument?

The argument is that it does not matter where the information derived from. If you make a fire you don’t need to establish who was the first caveman to figure it out. What do you care? It’s valid knowlege; you use it if you want.

What does “public” mean and how do you know it is “public”. Surely we must have thought of some method or device to sort out what is “public” and what is “private”. Help me out here…

known by more than one person is effectively public, and known widely is more common.

“How about a sequence of images constructed at great expense and with great technical skill to convey a complex story involving creative and unique characters and plots that humans enjoy? You don’t think such an accomplishment is a “scarce resource”?”

No, and neither do any economists, even those who favor IP. They favor IP because they think ideas ARE NOT scarce and they WANT to impose a type of scarcity on them.

Of course, you cannot show, using consistent principles and logic, how you get from here (film in the can) to there (ideas are free). But who cares? Kinsella says it’s a “FACT”. So there!

The argument is not that ideas are free. It’s that information and ideas and recipes are free goods *as opposed to* scarce goods. It’s just economic classification.

What a shyster. Ideas ARE free. The use of ET is not. The duplication of ET is not. The distribution of ET is not. Could there be, just possibly, a distinction to be drawn?

Not a relevant one, no.

I can use a given resource only by invading it and trespassing against the wishes of the owner of it.

“You think Spielberg is pleased you are sucking his property through your relationship with PB?

hahah, more question-begging. How dishonest of you. you call it “his property” even though this is what is in debate. haha you have no arguments at all.

You think this is his wish? Wait, I have a solution; we’ll just tell him we couldn’t tell ET was from him,

Of course we know it’s “from” him; it’s just that this is irrelevant. Some astronomer figures out there is a black hole in a given location. The information is “from” him. So what? Does this mean you can’t use it? Stupid!

Wildberry July 11, 2011 at 4:11 pm

@Stephan Kinsella July 11, 2011 at 1:00 pm

I am not invested in categorizing things as copying since I don’t want to prohibit it. You do. YOu are opposed to it. Obviously this makes it look like you might also hate competition, learning, and emulation, so you have to find a distinction, and you have to anchor this in property so you struggle to find a coherent theory.

Here is my rebuttal. Fortunately I didn’t have to write it.

The External Economies of Intellectual Creation
The extreme case of external economies is shown in the “production” of the intellectual groundwork of every kind of processing and constructing. The characteristic mark of formulas, i.e., the mental devices directing the technological procedures, is the inexhaustibility of the services they render. These services are consequently not scarce, and there is no need to economize their employment Those considerations that resulted in the establishment of the institution of private ownership of economic goods did not refer to them. They remained outside the sphere of private property not because they are immaterial, intangible, and impalpable, but because their serviceableness cannot be exhausted. .
People began to realize only later that this state of affairs has its drawbacks too. It places the producers of such formulas–especially the inventors of technological procedures and authors and composers–in a peculiar position. They are burdened with the cost of production, while the services of the product they have created can be gratuitously enjoyed by everybody. What they produce is for them entirely or almost entirely external economies.
If there are neither copyrights nor patents, the inventors and authors are in the position of an entrepreneur. They have a temporary advantage as against other people. As they start sooner in utilizing their invention or their manuscript themselves or in making it available for use to other people (manufacturers or publishers), they have the chance to earn profits in the time interval until everybody can likewise utilize it. As soon as the invention or the content of the book are publicly known, they become “free goods” and the inventor or author has only his glory.
The problem involved has nothing to do with the activities of the creative genius. These pioneers and originators of things unheard of do not produce and work in the sense in which these terms are employed in dealing with the affairs of other people. They do not let themselves be influenced by the response their work meets on the part of their contemporaries. They do not wait for encouragement.[13]
It is different with the broad class of professional intellectuals whose services society cannot do without. We may disregard the problem of second-rate authors of poems, fiction, and plays and second-rate composers and need not inquire whether it would be a serious disadvantage for mankind to lack the products of their efforts. But it is obvious that handing down knowledge to the rising generation and [p. 662] familiarizing the acting individuals with the amount of knowledge they need for the realization of their plans require textbooks, manuals, handbooks, and other nonfiction works. It is unlikely that people would undertake the laborious task of writing such publications if everyone were free to reproduce them. This is still more manifest in the field of technological invention and discovery. The extensive experimentation necessary for such achievements is often very expensive. It is very probable that technological progress would be seriously retarded if, for the inventor and for those who defray the expenses incurred by his experimentation, the results obtained were nothing but external economies.

Patents and copyrights are results of the legal evolution of the last centuries. Their place in the traditional body of property rights is still controversial. People look askance at them and deem them irregular. They are considered privileges, a vestige of the rudimentary period of their evolution when legal protection was accorded to authors and investors only by virtue of an exceptional privilege granted by the authorities. They are suspect, as they are lucrative only if they make it possible to sell at monopoly prices. [14]. Moreover, the fairness of patent laws is contested on the ground that they reward only those who put the finishing touch leading to practical utilization of achievements of many predecessors. these precursors go empty-handed although their main contribution to the final result was often much more weighty than that of the patentee.

It is beyond the scope of catallactics to enter into an examination of the arguments brought forward for and against the institution of copyrights and patents. It has merely to stress the point that this is a problem of delimitation of property rights and that with the abolition of patents and copyrights authors and inventors would for the most part be producers of external economies.

http://blog.mises.org/17345/stallman-an-internet-connectivity-tax-to-compensate-artists-and-authors/comment-page-1/#comment-792539

Here is what you say:

The argument is that it does not matter where the information derived from. If you make a fire you don’t need to establish who was the first caveman to figure it out. What do you care? It’s valid knowlege; you use it if you want.

No, and neither do any economists, even those who favor IP. They favor IP because they think ideas ARE NOT scarce and they WANT to impose a type of scarcity on them.

The argument is not that ideas are free. It’s that information and ideas and recipes are free goods *as opposed to* scarce goods. It’s just economic classification.

Of course we know it’s “from” him; it’s just that this is irrelevant. Some astronomer figures out there is a black hole in a given location. The information is “from” him. So what? Does this mean you can’t use it? Stupid!

Mises (and I for what that is worth) seem to be on one side of the fence here, and you on the other. Mises points out that resolving the “property problem” such that all non-scarce goods (meaning not that they are non-rivalrous, but that their serviceability is inexhaustible) are “free goods” means that you completely ignore the problem that Mises raises in the second paragraph here.

Once you attempt to address this, you come back to the property problem and the economic question. Once you address the economic question, you need a device to assign property. You admit the device is consistent with libertarian property rights. You simply vote to “veto” Mises.

That is your basic problem here. No amount of diversion or denial to commit to argumentation will change those facts. That is why you are being dishonest. You must 1) ignore the external economies question, and 2) you must make sure there is no distinction is ever drawn between a “recipe” for barbeque sauce, and a literary work, technical manual, or invention.

Until you address these issues in your argument, you are simply arguing with smoke, easy to see but hard to pin down.

Regards,

Peter Surda July 11, 2011 at 6:55 pm

Wildberry,

if one is unsure about what other people’s thinking, is asking questions a legitimate method of inquiry? And if one makes the appearance of arguing, yet for months refuses to answer simple questions, doesn’t that indicate a serious deficiency of either intellect or honesty?

Peter Surda July 11, 2011 at 7:05 pm

Wildberry,

That is why you are being dishonest.

Are you honest?

ignore the external economies question

I addressed it several times, you ignored it even though I insisted on clarifications.

you must make sure there is no distinction is ever drawn between a “recipe” for barbeque sauce, and a literary work, technical manual, or invention.

There isn’t. You have been challenged many times to explain what the alleged distinction is, yet failed to provide an answer.

Who’s the dishonest then? The one who blabbers for months and ignores questions, or the people who ask him the questions?

Wildberry July 5, 2011 at 8:42 pm

@ Peter Surda July 5, 2011 at 6:36 pm

Non-possessors of a burdened object are quite capable of making a copy too, and thereby refute your bullshit.

Can you please explain why this is true? Give me an example. I want to know how someone can make a copy (duplicate) of something they do not possess.

Peter Surda July 6, 2011 at 1:50 am

Wildberry,

Can you please explain why this is true?
I do this at almost every post I write to you. Somehow, you completely miss it.

Give me an example.

The usage of three out of five senses (vision, hearing, smell) does not require possession of the object you are observing. Any time you use one of those, you are copying. However, it requires a brain too, so I see how such a concept if foreign to you. Even if we disagree that a brain is a medium, you can still use your own material subsequent to observation and thinking to manufacture a copy. Furthermore, the process can be substituted by machines that do not require that you observe anything or think much. But maybe you’re too stupid to use a camera as well.

Wildberry July 6, 2011 at 10:35 am

A sells a book to B, say 500 pages long. The book has a limitation of use that prohibits copying.

C sees the book laying on the table, and carefully photographs each page, including the first page, which says “all forms of copying is prohibited”.

C goes home and prints out each page on his home printer. The camera, paper, printer and ink are his. He is now in possession of a copy of the book, in violation of the servitude that burdened the copy he photographed. Is he liable to A?

If you want to answer no, because C has not entered a contract with A, then remember that a servitude does not require privity, since notice is implied consent, and subsequent possession of a copy must mean he has access to a copy that was burdened to make the copy. Otherwise there could not have an exact copy in his possession. That is rather strong circumstantial evidence that he copied a burdened “original”. But we do not need circumstantial evidence here, because I have given you the facts.

So, are servitudes allowed in Ancaptopia? If they are, then A has rights that are violated by C. If not, then you have to also disallow them in other circumstances, like easements and servitudes in land.

Get it?

Peter Surda July 6, 2011 at 11:28 am

Wildberry,

you continue to avoid confronting the errors. At every opportunity, you misrepresent the elements of the debate and confuse.

A sells a book to B, say 500 pages long. The book has a limitation of use that prohibits copying.

This is a misleading representation. It’s not the book that has a limitation, rather it is the subsequent owners of the book that are restricted. Unless, of course, such a restriction was a direct consequence of property rights in that book, however in that case the restriction is redundant.

C sees the book laying on the table, and carefully photographs each page, including the first page, which says “all forms of copying is prohibited”.

If he manages to do this without:
- entering into a contract with either A or B
- violating property rights of either A or B, e.g. by touching the book
he’s not bound by the prohibition, since there is no legal connection between the prohibition and C’s actions.

C goes home and prints out each page on his home printer. The camera, paper, printer and ink are his. He is now in possession of a copy of the book, in violation of the servitude that burdened the copy he photographed. Is he liable to A?

If he violated a contract or rights (as explained in the previous paragraph), he could quite possibly be liable. But even in that case it does not necessarily follow that the copy of the book C manufactured is affected by the prohibition. The copy never belonged to either A or B in the first place. What’s more, in case the copy actually didn’t belong to C either, but to D, then you’d have even less legal connection between them.

If you want to answer no, because C has not entered a contract with A, then remember that a servitude does not require privity, since notice is implied consent,

I did not answer no, I answered it depends, because you omitted the factors necessary to make the conclusion. The “consent” refers to a contractual agreement (the sale). If the sale didn’t occur, and a violation of property rights didn’t occur either, it’s irrelevant.

and subsequent possession of a copy must mean he has access to a copy that was burdened to make the copy.

Wrong, I refuted this many times over. Stop repeating the errors and confront them.

Otherwise there could not have an exact copy in his possession.

Wrong.

That is rather strong circumstantial evidence that he copied a burdened “original”.

Again, the copy can be created without entering into a contract and without a violation of property rights. You confuse the situation even more by assuming that we do not know exactly what happened.

But we do not need circumstantial evidence here, because I have given you the facts.

You gave me some facts, but omitted the relevant ones. You are making again the argument that because there is a causal relationship between two actions, there is also a legal one.

So, are servitudes allowed in Ancaptopia? If they are, then A has rights that are violated by C. If not, then you have to also disallow them in other circumstances, like easements and servitudes in land.

You fail in elementary logic. I explained it over and over and over and over and you repeat your errors in complete ignorance of what I write.

Wildberry July 6, 2011 at 3:31 pm

@Peter Surda July 6, 2011 at 11:28 am
Wildberry- “A sells a book to B, say 500 pages long. The book has a limitation of use that prohibits copying.”

Is it really the case that this is too ambiguous for you; just no way to figure out that there’s no real difference? The limitation is a property interest in the book which benefits the author and limits the use by anyone possessing that property. Is that precise enough?

“C sees the book laying on the table, and carefully photographs each page, including the first page, which says “all forms of copying is prohibited”.

If he manages to do this without:
- entering into a contract with either A or B
- violating property rights of either A or B, e.g. by touching the book
he’s not bound by the prohibition, since there is no legal connection between the prohibition and C’s actions.

Well, you are introducing controversy with the “touching”. I don’t think his limitations of use of the subject property are strictly a matter of touching it. I am not sure touching qualifies as either possession or copying.

Given that proviso, can we say that if C does not take possession, he is not bound? If he does, he is bound? We can argue about what constitutes possession later.

C goes home and prints out each page on his home printer. The camera, paper, printer and ink are his. He is now in possession of a copy of the book, in violation of the servitude that burdened the copy he photographed. Is he liable to A?

If he violated a contract or rights (as explained in the previous paragraph), he could quite possibly be liable.

TA DA!!! Why oh why did it take you so long to reach this obvious conclusion?

But even in that case it does not necessarily follow that the copy of the book C manufactured is affected by the prohibition. The copy never belonged to either A or B in the first place. What’s more, in case the copy actually didn’t belong to C either, but to D, then you’d have even less legal connection between them.

NEW ARGUMENT! (let’s see where it leads…)

Would you agree that an exact duplication of the burdened book is proof that C copied the burdened book, thus violating the rights of A?

If yes, then C violates A’s book without having a contract with A.

If no, then you have to explain how C could create an EXACT COPY of the book without possessing it. Remember “exact copy” means identical, word for word; 500 pages.

“If you want to answer no, because C has not entered a contract with A, then remember that a servitude does not require privity, since notice is implied consent,”

I did not answer no, I answered it depends, because you omitted the factors necessary to make the conclusion. The “consent” refers to a contractual agreement (the sale). If the sale didn’t occur, and a violation of property rights didn’t occur either, it’s irrelevant.

You are now tripping over your own feet. You did not answer no, yet you will not answer yes?

Consent refers to consent to be bound by the limitation as a condition of possession. Keep up.

You say you can’t tell because you are reverting back to a requirement that C give “consent”, and I didn’t say if he gave consent. I did. I said he did NOT give consent, just like you don’t have to agree not to trespass into my yard in order for me to enforce my right to exclude you from trespass. That is the nature of a property interest. Yet just a few lines ago, you said “if he violates the property rights of A or B”. then he is bound.

We have established, CLEARLY, that according to your own admission, the property rights can exist in the book by way of servitude, and therefore C is bound, yet now you are saying he has to give his consent. Isn’t that a MAJOR contradiction? Consent to what?

“and subsequent possession of a copy must mean he has access to a copy that was burdened to make the copy.”

Wrong, I refuted this many times over. Stop repeating the errors and confront them.

Explain it to me one more time. I’m a little slow. How does someone make an exact copy of something without having some control of the original to copy from? Teleporters? Replicators? Some new technology I haven’t heard of?

“Otherwise there could not have an exact copy in his possession.”

Wrong.

How so? I’m all ears.

“That is rather strong circumstantial evidence that he copied a burdened “original”.”

Again, the copy can be created without entering into a contract and without a violation of property rights. You confuse the situation even more by assuming that we do not know exactly what happened.

Please explain. If you mean because he “saw it” and “memorized it”, how could you prove that was an act of “copy”? What evidence would you produce?

“But we do not need circumstantial evidence here, because I have given you the facts.”

You gave me some facts, but omitted the relevant ones. You are making again the argument that because there is a causal relationship between two actions, there is also a legal one.

What relevant fact(s)? You need some more facts? Tell me about it.

“So, are servitudes allowed in Ancaptopia? If they are, then A has rights that are violated by C. If not, then you have to also disallow them in other circumstances, like easements and servitudes in land.”

You fail in elementary logic. I explained it over and over and over and over and you repeat your errors in complete ignorance of what I write.

So, you have said nothing, advanced nothing, and simply accuse me of making “errors”, yet you can’t seem to articulate what they are? Try not to go off on a tangent. Just answer the questions I asked.

Your response should be either “yes”, “no”, or “I can’t say because I am missing X”, or something else, like “I’ve been faking my way along here and I’m now over my head and don’t know what to say.”

Or, you could say none of the above and point out what “facts” you need to decide which way to turn, and why.

Peter Surda July 7, 2011 at 3:15 am

Wildberry,

Is it really the case that this is too ambiguous for you; just no way to figure out that there’s no real difference? The limitation is a property interest in the book which benefits the author and limits the use by anyone possessing that property. Is that precise enough?

This description does not match the definition of servitudes, as it omits the necessity to either such limitations following either from rights or contracts.

Well, you are introducing controversy with the “touching”.

On the contrary, it is an example of what you are avoiding to do. It clarifies that a causal relationship alone is insufficient to claim that a right has been violated.

I don’t think his limitations of use of the subject property are strictly a matter of touching it.

That is why I said “e.g.”. However, you fail to define the upper boundary of such a limitation and in your theory, you equate it with causality.

I am not sure touching qualifies as either possession or copying.

The point is not whether it qualifies as copying, but whether it qualifies as a violation of rights.

Given that proviso, can we say that if C does not take possession, he is not bound?

On what grounds should he be bound?

If he does, he is bound?

It depends (on whether the restriction follows from the property rights in the book, or if it’s merely a contractual restriction).

So, as you see, the limitation that A and B agree upon is, in general, irrelevant for C.

He is now in possession of a copy of the book, in violation of the servitude that burdened the copy he photographed.

Again, the servitude is irrelevant. To call actions of C “in violation of the servitude” is erroneous.

TA DA!!! Why oh why did it take you so long to reach this obvious conclusion?

I have been saying this since the beginning. It however still has nothing to do with the servitude as such. The conclusion whether a right was violated does not depend on the servitude.

NEW ARGUMENT! (let’s see where it leads…)

On the contrary, it is still the same argument as ever. It is the counter to your claim that property rights jump to copies created by people who did not enter into a contract.

Would you agree that an exact duplication of the burdened book is proof that C copied the burdened book, thus violating the rights of A?

You are inventing new stuff again. It is not the act of copying as such that violates A’s rights. If C violated A’s rights, it is not because he copied the book. Just like in the example I brought up when the copier shoots the author while copying. The act of copying as such is irrelevant.

If yes, then C violates A’s book without having a contract with A.

You are combining unrelated things. If C violates A’s rights, it does not mean that this has anything to do with copying.

If no, then you have to explain how C could create an EXACT COPY of the book without possessing it.

To do this with a book would, indeed, be tedious, but not impossible. But again, this is not the typical case covered by IP. Nevertheless, the possession is irrelevant with respect to the copying restriction. Merely because possession might be a rights violation, it does not follow that the copying restriction has any influence on the consequences. In light of this, it does not follow that the copy created by a thief is burdened by the restriction. While it is possible, hypothetically, that the thief might have to part with the copy as a restitution, the copy is still unburdened by the restriction and can serve to sprout a new unencumbered chain of events.

Remember “exact copy” means identical, word for word; 500 pages.

500 pages is probably not more than a megabyte of data. It’s nothing.

You are now tripping over your own feet. You did not answer no, yet you will not answer yes?

You omitted the data necessary to make the conclusion.

Consent refers to consent to be bound by the limitation as a condition of possession. Keep up.

Wrong. Consent, in the context of servitudes, refers to the act of sale, not the act of possession.

You say you can’t tell because you are reverting back to a requirement that C give “consent”, and I didn’t say if he gave consent.

That is not what I said.

I said he did NOT give consent, just like you don’t have to agree not to trespass into my yard in order for me to enforce my right to exclude you from trespass.

Again, servitudes do not create rights, the transfer existing rights. If you do not have a right to not have your property copied, then you cannot transfer it by servitude. What the servitude does in this case is that it transfers rights from the buyer to the seller. This is why a third party is unaffected by it.

We have established, CLEARLY, that according to your own admission, the property rights can exist in the book by way of servitude…

We also have established that servitudes affect subsequent buyers, rather than subsequent possessors.

and therefore C is bound,

And therefore, C is, per se, not bound.

Isn’t that a MAJOR contradiction?

You misrepresent what I say, and you also misrepresent servitudes.

Explain it to me one more time.

Maybe you should stop ignoring your opponents instead of demanding they repeat themselves.

How does someone make an exact copy of something without having some control of the original to copy from?

By using one of your senses, or tools that do that for you.

If you mean because he “saw it” and “memorized it”, how could you prove that was an act of “copy”?

I do not need to prove anything. you need to do that. I claim that the whole concept of “act of copy” is confusing and irrelevant.

You erroneously inject servitudes, copying and so on, into your descriptions of acts of people. As elaborated above, they are irrelevant.

Kid Salami July 6, 2011 at 6:48 am

Sorry to have missed all the “fun”, I haven’t been able to post for the last 24 hours – is there something up with this site?

Kinsella said:

“Such positive law distinctions and classificaitons are not relevant here; they just serve to either confuse or cloud the basic libertarian property rights issues, or are an illegitimate appeal to authority…..These are positive law doctrines. You have not demonstrated their relevance, or their compatibility with libertarian property rights.”

Did everyone see that?

How far was this from Kinsella’s mind when he said these words:

http://blog.mises.org/10433/why-airwaves-electromagnetic-spectra-are-arguably-property/

“Property rights in bodies are different than property rights in land and in cows and in an apple. One type of property right is an easement (servitude, in the civil law). Say people routinely walk over a path from point A (their village) to point B (watering hole). You can say they have homesteaded at least that use of the propety. If someone else builds a home there, they have to let the easement continue.”

or when I started this disucssion and he said to me:

http://blog.mises.org/17228/hayek-contra-copyright-laws/#comment-786704

“a property rights is just the legal right to control a scarce resource. The right can be limited with respect to a given resource, due to the nature of initial use and/or the resource itself. If you build a farm on unowned land you have established particular use-rights. If you walk across it regularly, you have other use-rights. They are all property rights, the latter sometimes called an easement. If you homestead land you of course homestead it subject to any existing easements.”

I didn’t see any caveats there – it is perfectly clear, i mean, he actually used the word “homestead” and i don’t see any doubt about “their relevance, or their compatibility with libertarian property rights”.

These posts – or any other of the voluminous amount of posts on this topic for the last two weeks – would have been perfect times to bring this somewhat pertinent fact up. Now, suddenly some people know a bit about the operation of servitudes/easements and start asking detailed questions – suddenly – these aren’t compatible with libertarian theory? Ha ha, good one.

Why did I bring this up in the first place? Was it a lucky guess that the very thing that I said was incompatible with the anti-IP theory he now admits is not, in fact, compatible with the theory?

Peter Surda July 6, 2011 at 8:04 am

Kid Salami,

Was it a lucky guess that the very thing that I said was incompatible with the anti-IP theory he now admits is not, in fact, compatible with the theory?

I still don’t understand what you’re getting at. At most, servitudes allow to restrict the behaviour of future buyers of your property in some way. Stephan said it outright at the beginning. That’s typically not what IP violations are, however.

The comparison of servitudes to IP is like saying that, if I shoot an author while copying his book, that violates the author’s property rights, and therefore it cannot be said that copying does not violate property rights. It’s a a misleading construct, since performing the act of copying and performing the act of purchasing an original do not require each other, just like copying does not require shooting the author.

Stephan Kinsella July 6, 2011 at 9:46 am

I was talking about his trotted out legal mumbo jumbo like “A servitude is both a covenant enforceable under contract at law, and an equitable servitude enforceable at equity.” and also this “touch and concern” stuff. Not the basics of property acquisition (homesteading, including of limited ownership rights such as easements/servitudes) or property transfer (by contract, including outright sale or donation, or partial via servitudes or coownership arrangements). These basic notions are all grounded in and compatible with basic libertarian principles. I have outlined why, and the relevance of these legal/property notions. Bringing in extra positive law accumulations like equity, touch and concern, etc., is both unnecessary to explain the basics of libertarian property rights and it is irrelevant as an appeal to authority.

Wildberry July 6, 2011 at 11:29 am

@ Stephan Kinsella July 6, 2011 at 9:46 am

Yes, you may consider it “legal mumbo jumbo”, but I presume it is meaningful to you, being a lawyer and all. I have invited you to use any principles you wish to draw upon to explain why this is incorrect, illegitimate, or in someother way violates your principles of how property rights would operate within your “libertarian” (small l) framework. I’ve been waiting.

Of course, the importance of this goes to remedies. Enforcing the servitude as a contract entitles the petitioner to money damages. Enforcing it as an equitable servitude entitles the petitioner to equitable remedies; i.e. injunction.

Do you have money damages and injunctions in your framework?

Finally, you speak to the question here:

These basic notions are all grounded in and compatible with basic libertarian principles.

As I said days ago now. Fine we can put that behind us as a settled issue.

Now your objections do not involve “touch and concern”, so that is fine, too. No need for me to try to prove that point any longer, since you concede it is unnecessary. Good.

In comparing servitudes in land and IP, you said that the best corollary is a “non-apparent negative servitude”, meaning that the limitation is being transferred with the tangible property (book) without notice, and therefore enforecement is aggression, becaue without notice the servititude would not be enforceable.

Is that correct?

Peter Surda July 6, 2011 at 11:55 am

Widlberry,

meaning that the limitation is being transferred with the tangible property (book) without notice
yet again, you omit the necessary conditions, and thereby repeat your error. The limitation is transferred with the sale of the book. Not with possession of the book, not with looking at the book, not with hearing other people reading the book, not with the book’s father’s mother’s brother’s ex-roommate, and not with the sale of the copies of the book.

Confront your errors.

Wildberry July 6, 2011 at 4:00 pm

You continue to find new ways to show your ignorance of the subject matter.

Transfer of title does not require sale; it may occur by capture, sale, gift, trade, or abandonment, (or adverse possession).

And if you want to split hairs, (are you a frustrated hair stylist?) the limitation is on copying. So even possession, much less “looking, hearing, reading” and certainly not the purchase of copies of a book, necessarlily violate the limitation on copying.

Guess what? Copying violates the limitation on copying. Try to keep up.

Peter Surda July 7, 2011 at 3:30 am

Wildberry,

You continue to find new ways to show your ignorance of the subject matter.

Projecting and deflecting again, I see.

Transfer of title does not require sale; it may occur by capture, sale, gift, trade, or abandonment, (or adverse possession).

I was using the word sale in a colloquial meaning, referring to a contractual relationship, which also covers, out of your examples, gifts and trade. Abandonment is not a transfer of title. Based on my understanding, capture is homesteading (i.e. not a transfer of title), and adverse possession is not a part of libertarian framework.

And if you want to split hairs, (are you a frustrated hair stylist?) the limitation is on copying.

Again, this only affects transfers of title, because it does not follow from property rights in the object being copied.

So even possession, much less “looking, hearing, reading” and certainly not the purchase of copies of a book, necessarlily violate the limitation on copying.

Unless servitudes can create rights which did not exist in the first place, rather than merely transfer existing rights, the limitation is irrelevant to people who are not subsequent buyers.

Copying violates the limitation on copying.

Yet, it only affects people who are contractually connected to such a limitation.

Stephan Kinsella July 6, 2011 at 7:41 pm

Yes, you may consider it “legal mumbo jumbo”, but I presume it is meaningful to you, being a lawyer and all.

Yes, but when I discuss matters of law or rights or even IP I try not to do the dishonest thing of (a) arguing from authority, or (b) baffling with bullshit. I happen to think lawyers tend to be less able to comprehend libertarian principles, and that any intelligent layman can easily grok the basic legal matters needed to have an intelligent view of property rights and libertarian theory. This is why I am not the only one–one of the few Anarcho-Austrian libertarians who are patent attorneys–who understands the case against IP. There are many people who have a very sophistocated understanding of the flaw of IP, including Surda.

When I draw on established legal categories it is explicitly for pegagogical purposes, or to make an analogy, or if I explain why the classification is already rooted in and compatible with libertarian property rights. You are not. You are just trotting out a bunch of obscure legal doctrines, that are either not relevant, or confusing to laymen, or not shown to be compatible w/ libertarian principles.

In comparing servitudes in land and IP, you said that the best corollary is a “non-apparent negative servitude”, meaning that the limitation is being transferred with the tangible property (book) without notice, and therefore enforecement is aggression, becaue without notice the servititude would not be enforceable.

Is that correct?

Not quite. I explained that servitudes traditionally run with immovables and there may be reasons for this, but in principle you could envision them running with movables, though I am not 100% sure about it. The point is that it’s easy to see that that’s waht they ARE: IP rights ARE negative servitudes imposed on movables. Maybe you could argue they are invalid because servitudes should not be imposed on movables. That is a separate argument. My argument was that even if servitudes are permissible on movables, they need to be voluntarily agreed to by the owner of property. and I am not speaking of a purchased mousetrap or book, I am speaking of the body, factory, raw materials, paper, and ink owned by people. It is these things that IP imposes servitudes on. But they were never agreed to. So we have two types of servitudes: those that are legitimate b/c the owner of the servient estate agreed to it; and those that the owner of the servient estate did not agree to: these are invalid b/c they were not agreed to, and maybe also if and to the extent tehy apply to movables.

Wildberry July 6, 2011 at 9:00 pm

@Stephan Kinsella July 6, 2011 at 7:41 pm
I said: “Yes, you may consider it “legal mumbo jumbo”, but I presume it is meaningful to you, being a lawyer and all.”

Yes, but when I discuss matters of law or rights or even IP I try not to do the dishonest thing of (a) arguing from authority, or (b) baffling with bullshit.

Well, I happen to be doing neither, so we’re even. Just because you have a bias against other lawyers doesn’t mean you have to assume the worst in me.

You are just trotting out a bunch of obscure legal doctrines, that are either not relevant, or confusing to laymen, or not shown to be compatible w/ libertarian principles.

I agree such esoteric principles as equitable servitudes can be confusing to laymen, but you are not a layman, and sometimes an analysis must reach beyond a laymen’s grasp of the issues. Everything I have said here is relevant to one purpose; to explore to what extent the analogy you wrote about holds for IP and where, precisely, you and I diverge.

My approach is to apply the established principles of the existing legal framework and try to encourage you to provide an accurate distinction between that and your libertarian principles of property rights specifically, and AET in a more general sense. That is my motivation, take it or leave it.

“In comparing servitudes in land and IP, you said that the best corollary is a “non-apparent negative servitude”, meaning that the limitation is being transferred with the tangible property (book) without notice, and therefore enforcement is aggression, because without notice the servitude would not be enforceable.

Is that correct?”

Not quite. I explained that servitudes traditionally run with immovables and there may be reasons for this, but in principle you could envision them running with movables, though I am not 100% sure about it.

OK. It is only an analogy, after all. We don’t actually use servitudes to create or enforce IP. I am operating from the point of view that it is possible to envision the similarities, which are striking.

One benefit of an analogy is not only to illustrate similarities, but also to distinguish differences. That is my purpose in raising the details of the positive doctrines of property law, because I am wondering where you think it precisely breaks down.

The point is that it’s easy to see that that’s waht they ARE: IP rights ARE negative servitudes imposed on movables.

Fine, then why all the posturing to deny it when I am saying the same thing, and consider this an agreement from which we may pursue further analysis? You and Peter have wasted, between us, 1,000s of words to try to get to that common ground.

If this is a legitimate way to view IP, then it is also legitimate and relevant to see whether the analogy continues to hold as you look at the various types of fact patterns that encompass the subject matter of IP, especially copyrights, which is the clearest and most straightforward case of IP.

Maybe you could argue they are invalid because servitudes should not be imposed on movables. That is a separate argument.

Yes, and one that you have not made, as far as I know.

My argument was that even if servitudes are permissible on movables, they need to be voluntarily agreed to by the owner of property. and I am not speaking of a purchased mousetrap or book, I am speaking of the body, factory, raw materials, paper, and ink owned by people. It is these things that IP imposes servitudes on. But they were never agreed to.

This is where you lose me. They are “voluntarily agreed to by the owner of the property”. That is how they are created. But you seem to resist the idea that this creation of property interest does not require two adjacent estates. An owner of land can create a servitude that reserves mineral rights, for example, and then convey that land to another. The potential buyer of that land does not negotiate the servitude, he negotiates the price he is willing to pay for that particular land with that particular burden. If he takes possession as successor in title, he is bound by the servitude.

Also, the successor may have all the mining equipment in the world, and yet he cannot use it to extract minerals without violating the original landowner’s property rights to those minerals on that burdened estate. This servitude imposes nothing on his equipment. If it did, it would have to attach to the title to that equipment, which it does not. It attaches to the land itself.

Likewise, the servitude in IP attaches to the object that is burdened, the book in my example, not paper and ink and printer factories or raw materials. It attaches and follows the book. The book is the servient estate. The book is the movable property.

So we have two types of servitudes: those that are legitimate b/c the owner of the servient estate agreed to it; and those that the owner of the servient estate did not agree to: these are invalid b/c they were not agreed to, and maybe also if and to the extent tehy apply to movables.

I do not know how a servitude can be created unless it is agreed to by the owner of the servient estate, initially. That is how a servitude comes into being; it is created by the intent of the owner of the servient estate to create it. That is true in the case of easements, and in the case of a “true” servitude, in which there is only a servient estate and no dominant estate. Symbolically, in this type of servitude, the “dominate estate” is the beneficiary of the servitude.

To draw this analysis to IP, the book is the servient estate, and the author is the beneficiary of that burden. As far as I can tell, the analogy holds perfectly.

Stephan Kinsella July 7, 2011 at 12:46 am

I cannot tell if you are daft or dishonest. Your argument is that if A sells a book to B he can impose a servitude on it. As we have explained a million times you have not shown how this affects C who uses HIS OWN PROPERTY to impattern it a certain way.

My argument is that the reason IP is illegitimate is BECAUSE it gives A a right to tell C how he can use HIS OWN PROPERTY–his body, paper, ink, materials, etc. Can you not see the difference? We are talking about a case wehre C did NOT buy anything from A, that has a legitimate servitude attached to it. Where C never owned or touched or possessed an object that A manufactured and sold to B. Do you not get this? Are you really this blind?

Well, I happen to be doing neither, so we’re even. Just because you have a bias against other lawyers doesn’t mean you have to assume the worst in me.

Not an assumption. I’ts a conclusion based on observation

You are just trotting out a bunch of obscure legal doctrines, that are either not relevant, or confusing to laymen, or not shown to be compatible w/ libertarian principles.

I agree such esoteric principles as equitable servitudes can be confusing to laymen, but you are not a layman, and sometimes an analysis must reach beyond a laymen’s grasp of the issues. Everything I have said here is relevant to one purpose; to explore to what extent the analogy you wrote about holds for IP and where, precisely, you and I diverge.

You seem to totally misapprehend (intentionally, is my guess) your easement argument and my servitude idea. Mine is simply to recognize that IP gives a negative servitude to some person A even though he never bargained for it. It is a servitude NOT OVER THE objects sold by A to C, but a servitude over property *already owned by C*. Can you really not see this? It has nothing to do with your daft IP-by-contract argument.

Not quite. I explained that servitudes traditionally run with immovables and there may be reasons for this, but in principle you could envision them running with movables, though I am not 100% sure about it.

OK. It is only an analogy, after all.

It is not an analogy. I am saying that if the law recognized servitudes in movables, and if it did not alreayd consider IP to be legitimate (by legislative fiat) then the property way to legally categorize IP rights granted by teh state are negative servitudes. REcognizing this would help make it clear to dissemblers like you why IP is invalid: because it’s a property transfer that was not consented to.

My argument was that even if servitudes are permissible on movables, they need to be voluntarily agreed to by the owner of property. and I am not speaking of a purchased mousetrap or book, I am speaking of the body, factory, raw materials, paper, and ink owned by people. It is these things that IP imposes servitudes on. But they were never agreed to.

This is where you lose me. They are “voluntarily agreed to by the owner of the property”. That is how they are created.

Wildberry. If A sells a book to B, then perhaps A has a servitude on that physical object that is (mostly) owned by B. B can use it for X purposes but not for Y purposes. But that is just an arrangement between A nad B.

Waht IP does is let A tell C not to use his own paper and ink or whatever to (say) write a sequel to that book, even if C never owned the book subject to the servitude. IP gives A a veto right over how C uses C’s property. That is the negative servitude I am criticizing, not the voluntary one that A and B create over the book sold by A to B!! CAn you not see the difference? I cannot believe you are so stupid.

So we have two types of servitudes: those that are legitimate b/c the owner of the servient estate agreed to it; and those that the owner of the servient estate did not agree to: these are invalid b/c they were not agreed to, and maybe also if and to the extent tehy apply to movables.

I do not know how a servitude can be created unless it is agreed to by the owner of the servient estate, initially.

IT IS CREATED BY THE PATENT AND COPYRIGHT STATUTES. Hellooooo McFly!!!!!

That is how a servitude comes into being; it is created by the intent of the owner of the servient estate to create it.

It ought to, and that is why the negative servitudes created by IP law are illegitimate.

You cannot be so retarded, so you must be a dishonest troll. This is unbelievable.

Peter Surda July 7, 2011 at 9:13 am

Stephan,

and I am not speaking of a purchased mousetrap or book, I am speaking of the body, factory, raw materials, paper, and ink owned by people.

Thank you for clarifying this. I actually wanted to protest that the analogy is inaccurate also because it would have to apply to the material the copies consist of, rather than the objects being copied. But it looks like you had it right all along and I was just confused by Wildberry not getting it and misrepresenting it.

Stephan Kinsella July 7, 2011 at 9:49 am

Right, he is not bad at dissembling.

My original “negative servitude” post tried to make this clear as wehn I wrote “In all these cases, the patent or copyright holder obviously has a legal veto over certain uses others may make of their own property (their smartphones, their bodies, their paper and ink, their books).”

It’s easier to see if you think of the typical IP case where someone gets a patent for just filing an idea (but never makes or sells anything), or writes a novel that is just represented in bits on a computer file emailed to someone–in these casese there is no owned object owned by the author/inventor that there can be a servitude on; in htese cases the negative servitude created by IP is applied to the previously- owned property of millions of third parties–their bodies, their machines, their printers, etc.

Peter Surda July 7, 2011 at 10:45 am

Stephan,

you’re right, the issue is more apparent with those examples.

Wildberry July 7, 2011 at 12:17 pm

@Stephan Kinsella July 7, 2011 at 9:49 am

Right, he is not bad at dissembling.

Of course, if it is not dissembly, which it is not, then this is some kind of compliment, so thank you.

Wildberry July 7, 2011 at 12:11 pm
The Kid Salami July 6, 2011 at 6:49 am

Peter

“The difference between a license and easement is this: a license is a right in contract only, while an easement is not only a right in contract but also an interest in real property.”

I pointed out this quote a day or two ago. You seemed to grudgingly agree, now you appear to disagree – I really don’t have any idea what you think about it. You can rail at Wildberry all you want, he has clearly gone to the trouble to learn the operation and details of covenants/easements/servitude and I suggest that you have not. Might you save us all some time by telling us all if a) you disagree with the statement above or, if you agree with it, b) explaining the difference in your own words and with, say, an example. This way, we might avoid the situation where every post is about you saying easements/servitudes are just contracts.

Peter Surda July 6, 2011 at 7:58 am

Kid Salami,

You seemed to grudgingly agree, now you appear to disagree – I really don’t have any idea what you think about it.

For some odd reason, you seem to miss the point. Even if servitudes were an interest in real property, that only means that they apply to subsequent buyers of that property. Buying of a property requires that the buyer voluntarily enters into a contract. People who do not enter into a contract, and are not buyers of that property, are not affected by the servitude.

You can rail at Wildberry all you want, he has clearly gone to the trouble to learn the operation and details of covenants/easements/servitude and I suggest that you have not.

I insist that servitudes only affect people who buy the property. You might argue that they did not necessarily agree to the servitude. Nevertheless, they agreed to the purchase. That is a contract. Outside of these contracts, the servitude has no effects, it does not bind third parties.

Kid Salami July 8, 2011 at 3:49 pm

I still genuinely have no idea what your position is here – you appear to be dancing around the root of the issue. I want to accuse you of a Chewbacca Defence, but I think I should try once more. So just to be clear, when i posted a while back above this text

“Kid Salami June 30, 2011 at 8:32 am

http://lians.ca/documents/EasementsLicenses.pdf

“Accordingly, if A by licence, that is, by contract, permits B to pass and repass over A’s
land, and A subsequently sells the land to C, because C was not a party to the contract, C
may maintain an action in trespass against B and get an injunction stopping B from passing
over the land. The only remedy B has, in this situation, is an action in damages against A
for breach of contact.

However, if the grant by A is an easement, then B’s right to pass and repass over the
property in question burdens the title to the property and, as a result, the new owner, C,
takes a title which is subject to, or encumbered by, B’s right to pass and repass over the
property and, therefore, C cannot stop B from doing so.

It is immediately apparent that a right created by an easement is much more secure,
and therefore much more valuable, than a right created by a licence.”

Then, do you agree that in the first case B (if he wants to pass over the land) has a breach action against A, whereas that in the second case A and his whereabouts are irrelevant and B can “force” C to allow him to pass? I believe one of:

yes
no
I need to know fact XYZ

will do.

Peter Surda July 9, 2011 at 4:20 am

Kid Salami,

I need to know whether the contract was a partial transfer of property rights from A to B, or a combination of a sale of the good from A to B and a conditional transfer of title from B to A. Calling the contract “license” or “easement” does not clearly establish which of those it is, although I think the distinction roughly corresponds to positive versus negative easements (I might be wrong on the last one though).

In the case of a partial transfer, A retains some rights in the good being sold, so can apply them to anyone. In the case of conditional transfer, A gives up all rights in the good being sold, and the transfer is a separate arrangement, merely happening concurrently to the sale. The conditional transfer cannot be applied to third parties, since they never agreed to it.

Clear?

Kid Salami July 9, 2011 at 9:17 am

“I need to know whether the contract was a partial transfer of property rights from A to B, or a combination of a sale of the good from A to B and a conditional transfer of title from B to A. Calling the contract “license” or “easement” does not clearly establish which of those it is, although I think the distinction roughly corresponds to positive versus negative easements (I might be wrong on the last one though).”

In the first case, the two people agree contract: B is to pay A £X per year and then A is to allow B to pass over his land and if A sells the land he “promises” in the contract to include this agreement about the pathway in any sales pitch and so allow B to come to an agreement with the new owner before title is transferred from A to the new buyer (B is limited to asking for, say, the current rate per year being charged paid to A). If A does not do this, there are damages due to B detailed in the contract.

In the second case, the “arrangement” between is an easement between A and B, one that is allowing B to do something on land he doesn’t own and so it is a positive easement, where B is the benefitting and hence dominant estate and A has the burden and hence is the servient estate. And it is an appurtenant easement, which is one that benefits the dominant estate and “runs with the land”.

The problem comes when A sells the land without telling the buyer of the arrangement, whichever it is. Then, do you agree that in the first case B (if he wants to pass over the land) has a breach action against A, whereas that in the second case A and his whereabouts are irrelevant and B can “force” C to allow him to pass?

Is this enough information?

Peter Surda July 9, 2011 at 1:08 pm

Kid Salami,

I have to apologise, in the first example I switched the roles of A and B.

Although I am still not 100% sure to which of the prototypes match the situations, probably, in the fist case, the arrangement is not a partial sale, but a conditional transfer of title (from A to B). The result of a violation of the condition is then A having to pay money (“damages”) to B. The arrangement does not obligate anyone else (e.g. C) to anything. In the second case, the arrangement is probably a partial sale (of land, from A to B). The result of a violation of the condition is a trespass (or theft, if you will), and therefore can apply to anyone.

Maybe instead of using qualitative, it’s better to use quantitative examples. If A has 100 cows, in the first case, he would retain ownership of all 100, but allow B to milk one of them. If he sold 100 cows to C and C would deny B the ability to milk any of them, A would need to pay B some money, but B would have no recourse against C. In the second case, A would sell one of the cows to B, and B could then obviously milk it. A cannot sell 100 cows to C anymore, he can only sell 99. If C was mistakenly led to believe that he bought all 100 and tried to take the 100th cow, that would be theft.

Clear?

Kid Salami July 9, 2011 at 4:35 pm

I’m not sure I’m completely clear on what you’re saying but probably. I’m only trying to establish one thing and one thing only. The question was:

“do you agree that in the first case B (if he wants to pass over the land) has a breach action against A, whereas that in the second case A and his whereabouts are irrelevant and B can “force” C to allow him to pass?”

When you say

in the fist case, the arrangement is not a partial sale, but a conditional transfer of title (from A to B). The result of a violation of the condition is then A having to pay money (“damages”) to B. The arrangement does not obligate anyone else (e.g. C) to anything. In the second case, the arrangement is probably a partial sale (of land, from A to B). The result of a violation of the condition is a trespass (or theft, if you will), and therefore can apply to anyone.

I think this is the answer, and that you agree that in the first case yes the buyer C has no obligation towards B and so B cannot “force” him to allow him to use the land, and in the second case then – regardless of how we characterise it, a partial sale or what – B has a claim against C because of his real property interest in the land.

Ok – so I think we can agree that the claim that servitudes are irrelevant (in that they are just a combination of other already existing more fundamental rights and mechanisms) is fine so long as we can characterise this joint real property interest in a way consistent with the Kinsella/Hoppe/Rothbard theory of property and the NAP. This is all i wanted.

This discussion has demonstrated that easements in their current form require a notion of coownership, or something, to be consistent. I think I have problems with this, but will give it a little more thought first. Irregardless of whether this reconciliation is ultimately possible or not though, I suggest that this is another example of the non-systematic approach to the problem. This was not previously part of the theory – not previously considered a crucial step in the argument and therefore the subject of some previous analysis and articles which can be linked to explaining the problem – but is yet another rabbit pulled out of a hat for the purposes of a particular discussion. These bases should have already been covered, not just asserted away.

Wildberry July 10, 2011 at 11:41 am

In the second case, A would sell one of the cows to B, and B could then obviously milk it. A cannot sell 100 cows to C anymore, he can only sell 99. If C was mistakenly led to believe that he bought all 100 and tried to take the 100th cow, that would be theft.

Sorry to intrude, but this case is not relevant to easements/servitude.

If A sells one of his cows to B outright, what benefit does A retain? This is simply an outright sale. Where is the serivient estate?

As Kinsella correctly points out (but does not correctly argue), this is a retained rights problem.

A correct examle would be if A sold a cow to B but retained the right to milk him twice a day, and B then sold to C, could A make C allow A to milk twice d day?
Under contracts, no, but B has breached a contract to A and owes damages to A.
Under an easement/servitude, yes. C did not buy the right to milk because B did not have it to sell. (ignoring “notice’” and “touch and concern” issues)

Wildberry July 10, 2011 at 12:04 pm

@Kid Salami July 9, 2011 at 9:17 am

so long as we can characterise this joint real property interest in a way consistent with the Kinsella/Hoppe/Rothbard theory of property and the NAP. This is all i wanted.

Yes, and Kinsella has conceded the point, but is now raising two issues, one legitimate, the other not.

Kinsella does not concede that the “easement” mechanism can properly be applied to “moveables”, yet he has not offered an argument for that other than the “lack of visible boundaries” argument made in AIP. This argument is inconsistent with the same facts that can be observed in land, and the facts as he describes them for two book, one with a reserved right to copy, and the other not. (Two adjacent parcels of land, identical in every way except one is burdened with an easement, do not have visible boundaries either. When was the last time you “saw” an easement?)

This falacious argument, which I will comment on soon, is in the “Contracts v. Reserved Rights” section of AIP.

Second, he reverts to the “ideas are free” equivocation, claiming that because “IP” is “information”, a “right to copy” cannot be justified. This is wrong for all of the reasons I have enumerated many times. No one is saying (me or copyright law) that either ideas or information is legitimate property.

easements in their current form require a notion of coownership

For my nickle, this “co-ownership” idea serves a purpose to Kinsella, but he does not addresss the new problems it creates, like how “co-owners” arrange to sell their jointly owned property. Do they have to agree? If so, then we get back into a contracts discussion, and undermine the entiere prinicple of an easement being a property right in the context of “movables” which is equivalent to easements in land.

but is yet another rabbit pulled out of a hat for the purposes of a particular discussion.

Here, I think you hit the nail. Argumentation cannot build on prior settled issues, because no issue can ever be settled. If the argument seems to be reaching a conclusion on a specific issue, either an equivocation is employed, or some new complicating facts are introduced to muddy the waters, like raising “touch and concern” and not addressing it as such, or transforming a discussion of “copy” to one of “remembering” and “telling” as if they are the same thing.

The anti-IP argument is not coherent, even strictly following the framework of Rothbard and Hoppe. But as I will explain in detail elsewhere, hopefully, I do not expect the defense attorney to admit his client is guilty.

Regards,

Peter Surda July 10, 2011 at 1:49 pm

Wildberry,

If A sells one of his cows to B outright, what benefit does A retain?

He retains 99 cows.

This is simply an outright sale.

Correct, it’s a simple sale of one cow.

Where is the serivient estate?

Servient estate is the 100 cows.

this is a retained rights problem

A retains 99 cows.

Do you understand what I meant when I said that I’ll use quantitative instead of qualitative examples?

Peter Surda July 10, 2011 at 2:00 pm

Kid Salami,

I’ll go a bit socratic on you too. You appear to have an aversion against partial sales. So, let me ask you, if you homestead something, can you sell parts of it to different people? Can you still do that by separating the parts by the time aspect rather than space (i.e. selling different timeslots)? Can you still do that by separating the parts by an arbitrary abstract description (i.e. “uses”)? If you couldn’t, how do you determine then which sales are valid and which are not? Also, if you couldn’t, wouldn’t that cause dramatic problems?

Peter Surda July 10, 2011 at 2:09 pm

Wildberry,

The anti-IP argument is not coherent

If you do not have a right to not have your property copied, servitudes cannot create it, right? This sounds pretty coherent to me. What specifically do you then refer to as not coherent then?

Kid Salami July 10, 2011 at 2:17 pm

Kinsella does not concede that the “easement” mechanism can properly be applied to “moveables”, yet he has not offered an argument for that other than the “lack of visible boundaries” argument made in AIP….

Yes, and he can’t move to the Friedman-esque argument that land registries allow this as then he’d find it hard to oppose the idea of “copyright registries”.

Second, he reverts to the “ideas are free” equivocation, claiming that because “IP” is “information”, a “right to copy” cannot be justified. This is wrong for all of the reasons I have enumerated many times. No one is saying (me or copyright law) that either ideas or information is legitimate property.

He just did this again on his last comment a little bit above. It’s like a case of tourettes, he just can’t seem to stop blurting out stuff about copying the colour of a house you saw from across the street or copying the way people walk. It’s just tilting at windmills, who exactly is arguing for this?

For my nickle, this “co-ownership” idea serves a purpose to Kinsella, but he does not addresss the new problems it creates, like how “co-owners” arrange to sell their jointly owned property. Do they have to agree? If so, then we get back into a contracts discussion, and undermine the entiere prinicple of an easement being a property right in the context of “movables” which is equivalent to easements in land.

I agree, that’s why I made it very clear what the conclusion was – it is a hack and there will be consequences. I suspect it is fundamental circular, though i’ll have to think about it a bit.

…no issue can ever be settled. If the argument seems to be reaching a conclusion on a specific issue, either an equivocation is employed, or some new complicating facts are introduced to muddy the waters, like raising “touch and concern” and not addressing it as such, or transforming a discussion of “copy” to one of “remembering” and “telling” as if they are the same thing.

Yes, it might be consistent in the context of the particular thread, but is it consistent with all the other rabbits from all the other threads?

Kid Salami July 10, 2011 at 2:19 pm

“You appear to have an aversion against partial sales.”

Wrong. I am saying that they are inconsistent with the anti-IP argument put forward on here – in and of itself, I have no problem with it.

Peter Surda July 10, 2011 at 2:51 pm

Kid Salami,

I am saying that they are inconsistent with the anti-IP argument put forward on here.

Which argument?

Wildberry July 10, 2011 at 5:39 pm

@Peter Surda July 10, 2011 at 1:49 pm

“Where is the serivient estate?”

Servient estate is the 100 cows.

I hope this finally makes it clear to you and anyone following this blog, you don’t have a clue what you are talking about.

There is no servient estate; B owns 1 cow outright, and A owns 99 outright.

Peter Surda July 11, 2011 at 1:59 am

Wildberry,

I hope this finally makes it clear to you and anyone following this blog, you don’t have a clue what you are talking about.

So, you do not understand the difference between qualitative and quantitative analogies?

There is no servient estate; B owns 1 cow outright, and A owns 99 outright.

Servient estate is a term from positive law, and does not match the Kinsellian framework accurately. I am making an analogy by explaining what partial sales are. The boundaries of a good with respect to utility are contextual. 100 cows can be just as well one good as a piece of a land. Reread Mises (or Rothbard).

Let me then ask you: if you split a good physically and sell a part of it, is the transaction covered by different legal rules than splitting the good on an abstract boundary and selling a part of that?

Wildberry July 11, 2011 at 10:21 am

@Peter Surda July 11, 2011 at 1:59 am

When you find yourself in a hole, stop digging.

Peter Surda July 11, 2011 at 11:01 am

Wildberry,

When you find yourself in a hole, stop digging.

Is digging copying?

Wildberry July 6, 2011 at 10:50 am

Peter, Just a small correction.

The limitation applies to possessors. If a person A owned a burdened estate, and he rented out his house to a tenant, B, that tenant does not own the land, but has legal possession of it. That is all that is required to be bound, to be in legal possession and have notice.

The contract that B enters is to take limited rights of possession in exchange for paying rent. This contract is an additional covenant with A limiting his rights of use; for example, B may not be permitted to play loud music after 10pm. He certainly cannot sell the land (or likely sublease) it to a third party.

This does not mean however that B is now free to violate the terms of the servitude, because that limiation, say to build something more thant 40 feet high, is attached to A’s land. Anyone who benefits from that limitation has a cause of action against anyone who violates it. Privity is not required.

Peter Surda July 6, 2011 at 11:48 am

Wildberry,

The limitation applies to possessors. If a person A owned a burdened estate, and he rented out his house to a tenant, B, that tenant does not own the land, but has legal possession of it.

Unless you can show how you can rent without entering into a contract with the landlord, your objection is moot.

That is all that is required to be bound, to be in legal possession and have notice.

A contract is required. See above.

The contract that B enters is to take limited rights of possession in exchange for paying rent.

You now yourself say that B entered into a contract. I thought you were supposed to show how you can restrict other people’s behaviour without them having to enter into a contract. Silly me.

Wildberry July 6, 2011 at 3:55 pm

@Peter Surda July 6, 2011 at 11:48 am

Unless you can show how you can rent without entering into a contract with the landlord, your objection is moot.

It is only moot because you assert it is. This addresses your requirement to “purchase”, and I’m point out, using the landlord tenant analogy, that only possesion is relevant, not purchase.

I make this point because the case we are examining involves party C, who finds a book on a bench. He take possession but does not purchase. There is no contract. Is he bound?

That is all that is required to be bound, to be in legal possession and have notice.

A contract is required. See above.

You must be getting dizzy by now. You said “contract” or “violating a property interest”. I said the property interest, the one created by the servitude, is being violated. Now you come back with contract. Wheeee!!!

You now yourself say that B entered into a contract. I thought you were supposed to show how you can restrict other people’s behaviour without them having to enter into a contract. Silly me.

Stop mixing fact patterns. Now that I’ve explained about the difference betwen “purchase” and “possession”, you can go back tothe general case, where C finds a burdened book on the bench.

The thing about being silly is you can stop, if you choose to.

Peter Surda July 7, 2011 at 3:22 am

Wildberry,

using the landlord tenant analogy, that only possesion is relevant, not purchase

A contract is relevant. Not possession.

I make this point because the case we are examining involves party C, who finds a book on a bench.

Finding a book on a bench is not a contract.

That is all that is required to be bound, to be in legal possession and have notice.

Wrong, a contract is necessary too.

You said “contract” or “violating a property interest”. I said the property interest,

You said “property right interest”, but do not actually refer to one.

the one created by the servitude, is being violated.

Once again, servitude does not create property rights, in transfers them.

Now you come back with contract.

Your attempts to confuse your opponents are in vain.

Stop mixing fact patterns.

You are the one confusing.

Now that I’ve explained about the difference betwen “purchase” and “possession”

Just above you said that they result in the same consequence, now you said they are different.

The thing about being silly is you can stop, if you choose to.

I see you not in danger of stopping though.

Wildberry July 7, 2011 at 3:38 pm

Where do I say this:

Just above you said that they result in the same consequence, now you said they are different.

Peter Surda July 7, 2011 at 5:27 pm

Wildberry,

Where do I say this:

So you are not claiming that you are bound by a restriction regardless of whether you purchase the burdened object or merely possess it?

Wildberry July 7, 2011 at 5:42 pm

Why do you think you are entitled to answer my questions with a new question?

If you are going say what I say, show me my words. Otherwise make them your words.

Honesty is the best policy.

Peter Surda July 8, 2011 at 3:54 am

Wildberry,

Why do you think you are entitled to answer my questions with a new question?

Why should I be not?

If you are going say what I say, show me my words. Otherwise make them your words.

Ok, so when you say, I quote:

That is all that is required to be bound, to be in legal possession and have notice.

you do not, in fact, mean that a contract is sufficient to be bound, but rather in order to be bound you need both a contract and possession?

Honesty is the best policy.

Are you honest?

Wildberry July 7, 2011 at 12:09 pm

@Stephan Kinsella July 7, 2011 at 12:46 am

I cannot tell if you are daft or dishonest. Your argument is that if A sells a book to B he can impose a servitude on it. As we have explained a million times you have not shown how this affects C who uses HIS OWN PROPERTY to impattern it a certain way.

Sorry to say this Stephan, but this is a blatant lie. A servitude is either a property interest or not. If it is not, it is not a servitude. If it is, it does not require privity. You obviously know all of this, which make your denial dishonest.

Also, you fail to explain how C can “impattern it [his own property] in a certain way by copying a book without having possession of a copy to copy from. Where does he acquire the pattern? If he acquires it from the book, then what is the basis for violating the property rights that burden that book?

If he acquires “the pattern” from some other source, what he does with his property is irrelevant to this discussion (although I would be interested to know how he comes up with the exact patter of a 500 page book without access to it in any way). I know you are not blind, so what is your excuse?

My argument is that the reason IP is illegitimate is BECAUSE it gives A a right to tell C how he can use HIS OWN PROPERTY–his body, paper, ink, materials, etc. Can you not see the difference? We are talking about a case wehre C did NOT buy anything from A, that has a legitimate servitude attached to it. Where C never owned or touched or possessed an object that A manufactured and sold to B. Do you not get this? Are you really this blind?

What specifically, does A have a right to do under the facts we are discussing? Carte blanche? Of course not! You own your feet. Can you use them to trespass? What distinction are you trying to make here? Creating a servitude does not give A the unlimited right to control the world, right?

You seem to totally misapprehend (intentionally, is my guess) your easement argument and my servitude idea. Mine is simply to recognize that IP gives a negative servitude to some person A even though he never bargained for it. It is a servitude NOT OVER THE objects sold by A to C, but a servitude over property *already owned by C*. Can you really not see this? It has nothing to do with your daft IP-by-contract argument.

][emphasis added]

You are wrong about this. Simply wrong. Either you don’t understand what property here is servient, or you are trying to mislead those who are not schooled on the issues, like Peter.

The servitude does IN FACT impose limitations on use ON THE OBJECT SOLD BY A (author) TO B (book successor to A). Therefore C cannot ALREADY OWN THE BOOK, unless he takes possession of it FIRST. The limitations that C has on his conduct with his own property operates PRECISLEY as it would in the context of trespass on private land (a violation of private property rights). Property that C owns prior to trespass cannot be used to trespass. That is aggression.

It is not an analogy.

All the better.

I am saying that if the law recognized servitudes in movables, and if it did not alreayd consider IP to be legitimate (by legislative fiat) then the property way to legally categorize IP rights granted by teh state are negative servitudes. REcognizing this would help make it clear to dissemblers like you why IP is invalid: because it’s a property transfer that was not consented to.

[emphasis added]

I think if you would illustrate this assertion, following the property rules that apply to land, it would be obvious that no property is transferred without consent. I challenge you to demonstrate this to be false.

Wildberry. If A sells a book to B, then perhaps A has a servitude on that physical object that is (mostly) owned by B. B can use it for X purposes but not for Y purposes. But that is just an arrangement between A nad B.

What kind of arrangement? Is it a contract or a servitude? Was the physical object you refer to here, burdened by the servitude BEFORE or AFTER B took possession? If before, who created it?

Waht IP does is let A tell C not to use his own paper and ink or whatever to (say) write a sequel to that book, even if C never owned the book subject to the servitude. IP gives A a veto right over how C uses C’s property. That is the negative servitude I am criticizing, not the voluntary one that A and B create over the book sold by A to B!! CAn you not see the difference? I cannot believe you are so stupid.

It is dishonest of you to introduce derivative works here, as that is a special case of “copy”. We are not ready to go there. We are dealing with the general case of direct copy. You must reconcile to that general case before you can go on to consider special cases that introduce new facts and concepts. You are attempting to be deceptive here, but I need not follow you down this road.

Nonetheless, as you know, the issue you raise here, “even if C never owned the book subject to the servitude” is not the issue that such a special case would turn on anyway. It is not necessary to “own” the book. It is necessary to have “access” to it. While this may seem like a “fuzzy” area to those unfamiliar with the details of copyright law, that cannot apply to you. You know better.

So we have two types of servitudes: those that are legitimate b/c the owner of the servient estate agreed to it; and those that the owner of the servient estate did not agree to: these are invalid b/c they were not agreed to, and maybe also if and to the extent tehy apply to movables.

I wouldn’t have known how to make your contradiction any more obvious. Thank you.

Do you deny that the Author (A) owns his manuscript? If he agrees to create a servitude that burdens his own property, that is legitimate, “b/c the owner of the servient estate agreed to it;” right?

If he did not agree (with himself) to create such a servitude, then he cannot enforce such a limitation of use because “the owner of the servient estate did not agree to”.

The facts I have presented is that A does in fact create a servitude and therefore, according to you, that is legitimate.

This leaves you with only one argument, which you have not made, which must assert that servitudes cannot “apply to movables”.

IT IS CREATED BY THE PATENT AND COPYRIGHT STATUTES. Hellooooo McFly!!!!!

I am tempted to call you a fraud, but I don’t want to sound like Surda, so I refrain.

The rule of trespass exists in every state as positive law. Does that make the principle of trespass invalid in your view? Apparently you have not come “back from the future” where the State, apparently, is but a faint memory.

That is how a servitude comes into being; it is created by the intent of the owner of the servient estate to create it.

It ought to, and that is why the negative servitudes created by IP law are illegitimate.

Therefore, you seem to agree, a negative servitude created by the intent of the owner of the servient estate (A = author; Manuscript/book = servient estate) is the way it “ought” to be.

It ought to be this way in the same way that trespass and all other forms of legitimate property rights are legitimate, even though these rights are ALSO encoded in positive STATE laws?

So if you had your way, IP SHOULD be created, not by IP law, but by the operation of libertarian property principles.

I rest my case.

You cannot be so retarded, so you must be a dishonest troll. This is unbelievable.

It should be trivial to address my retarded comments and prove that I am dishonest. Make it believable.

Peter Surda July 7, 2011 at 2:15 pm

Wildberry

Also, you fail to explain how C can “impattern it [his own property] in a certain way by copying a book without having possession of a copy to copy from.

Can a file be a copy of a book? Is it possible to download a file from another computer without possessing that other computer?

Wildberry July 7, 2011 at 3:34 pm

A file may be a copy of a book, since all copies originate from the original, which is owned by the author.

It is not possible to download a file from another computer without taking possession of that file, assuming you are using your own computer to receive it.

It is not necessary to possess the other computer to take possession of a file that originates from it.

There is no “gotcha” here, but I think you are ill-prepared to explain or perhaps even understand why. Let’s see.

If we assume that the “book” starts out as a physical object made from pages and ink, etc. then you have to explain how the file was created without coping the book. You cannot assume the file just suddenly “exists”. So you are raising the issue of transforming the medium from paper to digital representation of the pattern imprinted on paper. Such transformation is an act of copy, which is prohibited by the lmitations on use which burdens this origianl book. So, how can the file exist without violating the limitation of use burdening the original book?

Only then can you explore the problem of transmitting this file from one computer to another. That is a secondary use of the book, and does not touch the fundamental issue being explored here.

Peter Surda July 7, 2011 at 5:55 pm

Wildberry,

A file may be a copy of a book, since all copies originate from the original, which is owned by the author.

Great.

It is not possible to download a file from another computer without taking possession of that file, assuming you are using your own computer to receive it. It is not necessary to possess the other computer to take possession of a file that originates from it.

So a file that you download from another computer is not a copy of the file stored on that another computer?

Let’s see.

Indeed.

If we assume that the “book” starts out as a physical object made from pages and ink, etc. then you have to explain how the file was created without coping the book.

Why would I have to explain it? I never claimed that copies do not exist. I merely claim that the acts of copying are not legally relevant.

You cannot assume the file just suddenly “exists”.

Why would I have to assume it? I do not claim that there is no causal connection between an original and a copy.

So you are raising the issue of transforming the medium from paper to digital representation of the pattern imprinted on paper.

I am not raising the issue. I’m just trying to get a clear response and am altering my questions in order to pinpoint your assumptions.

Such transformation is an act of copy, which is prohibited by the lmitations on use which burdens this origianl book.

Ok, so you’ve clarified now that there is, in fact, a right not to have your property copied in the first place. Doesn’t that mean that your whole posts in reaction to servitudes are redundant?

So, how can the file exist without violating the limitation of use burdening the original book?

We’ll clarify that soon enough.

So, since asking you about causality directly leads to nowhere, I’ll try a softer approach.

Is it possible to create a copy without someone else creating an original? If you create an original, and someone creates a copy because of that, does that mean they violate your rights? If you create an original, and someone creates something that is not a copy, but still is created because of that, does that still mean they violate your rights?

Stephan Kinsella July 7, 2011 at 11:30 pm
I cannot tell if you are daft or dishonest. Your argument is that if A sells a book to B he can impose a servitude on it. As we have explained a million times you have not shown how this affects C who uses HIS OWN PROPERTY to impattern it a certain way.

Sorry to say this Stephan, but this is a blatant lie.

NOt at all. I have in fact explained to you over and over that the co-ownership arrangement between A and B cannot affect C’s property.

A servitude is either a property interest or not. If it is not, it is not a servitude. If it is, it does not require privity. You obviously know all of this, which make your denial dishonest.

A normal servitude is property. If it is imposed by the state it is illegitimate. (i.e patent and copyright). If it is agreed to it is fine but only burdens a particular object, and cannot tell third parties C how they can use their own property. Whether servitudes can burden movables is up for debate.

Also, you fail to explain how C can “impattern it [his own property] in a certain way by copying a book without having possession of a copy to copy from. Where does he acquire the pattern? If he acquires it from the book, then what is the basis for violating the property rights that burden that book?

Suppose I tell you the plot of the Star Wars movie I heard some guys talking about at a cocktail party. You then write a novel about Wildberry Calrissian’s new Adventures. Just use your imagination.

If he acquires “the pattern” from some other source, what he does with his property is irrelevant to this discussion (although I would be interested to know how he comes up with the exact patter of a 500 page book without access to it in any way). I know you are not blind, so what is your excuse?

Say I get a .doc file attached to an email sent to me over the internet. I mean there are millions of ways.

My argument is that the reason IP is illegitimate is BECAUSE it gives A a right to tell C how he can use HIS OWN PROPERTY–his body, paper, ink, materials, etc. Can you not see the difference? We are talking about a case wehre C did NOT buy anything from A, that has a legitimate servitude attached to it. Where C never owned or touched or possessed an object that A manufactured and sold to B. Do you not get this? Are you really this blind?

What specifically, does A have a right to do under the facts we are discussing? Carte blanche?

Who cares? it’s something, and to that extent it’s unjust as it’s a control by A of C’s resources.

Of course not! You own your feet. Can you use them to trespass? What distinction are you trying to make here? Creating a servitude does not give A the unlimited right to control the world, right?

A copyright, say, lets the copyright holder tell everyone else that they cannot use their own bodies and paper and printers in a certain way. The copyright holder has a veto over how everyone else can use their own property. This is like a negative servitude. But it was never agreed to. So it’s illegitimate.

The servitude does IN FACT impose limitations on use ON THE OBJECT SOLD BY A (author) TO B (book successor to A).

I am not talking about the object sold by A to B. In fact A may have IP rights in non-objects: an invention embodied in a patent filing, say. The servitude I am talking about is the right patnet law gives to A to tell C what C may not do with his own property (his body, his paper, etc.).

Wildberry. If A sells a book to B, then perhaps A has a servitude on that physical object that is (mostly) owned by B. B can use it for X purposes but not for Y purposes. But that is just an arrangement between A nad B.

What kind of arrangement? Is it a contract or a servitude? Was the physical object you refer to here, burdened by the servitude BEFORE or AFTER B took possession? If before, who created it?

I don’t care b/c I am just granting this arguendo. I am just saying htat EVEN IF B is bound to A, then that does NOT BIND C.

Wildberry July 8, 2011 at 10:24 am

@Stephan Kinsella July 7, 2011 at 11:30 pm

NOt at all. I have in fact explained to you over and over that the co-ownership arrangement between A and B cannot affect C’s property.

Maybe I don’t get it because of this “co-ownership” thing you keep bringing up. When A sells to B, how do you determine whether A and B are co-owners? If you mean essentially what I said earlier, that A, having created two “deeds”, D1 and D2 to M, and sells only D2, A still owns D1? How does co-ownership work if B wants to sell under D2? Does A have anything to say about it?

A normal servitude is property. If it is imposed by the state it is illegitimate. (i.e patent and copyright). If it is agreed to it is fine but only burdens a particular object, and cannot tell third parties C how they can use their own property. Whether servitudes can burden movables is up for debate.

OK, I accept your position, and don’t want to put words in your mouth. Who is involved in you proviso “If it is agreed to”? A creates the servitude without anyone else’s agreement. B buys under the limitations A created. It is now B’s property. If he is bound by the limitation of use, then he doesn’t have to agree to anything further. If he sells to C, are you saying that C has to find A and make a new contract, or the servitude is destroyed? If so, then that’s not a servitude. If not, then it is a legitimate servitude and within libertarian principles.

Is that correct?

Maybe it is that you “imagine” that C can make a direct copy of something he doesn’t have, and that is why you say it is unjust to tell him he can’t make a copy? Are you raising the Star Trek replicator defense?

Suppose I tell you the plot of the Star Wars [sorry, wrong science fiction] movie I heard some guys talking about at a cocktail party. You then write a novel about Wildberry Calrissian’s new Adventures. Just use your imagination.

I can appreciate why you want to escape from this simple fact pattern and introduce something like derivative works. That makes everything very complicated, and if I try to answer you in any detail, everyone will get confused, especially those baffled laymen.

As you know, naturally, you are raising a very special case of “indirect copying” under copyright law, for which the proof of circumstantial evidence is required. There is no way we can discuss that intelligently unless we have created some foundation of agreement or disagreement on the general case: direct copying.

So, I wonder if you can just stick to what I’m calling the general case, where the act in question is direct copying. That keeps things simple.

Say I get a .doc file attached to an email sent to me over the internet. I mean there are millions of ways.

Are you trying to say that this file you imagine is not a direct copy of the original book the author released under conditions of limited use? How could that be possible and still be a case of direct copying. You seem to be arguing from the position of subsequent copies of this copy. One copy is a violation of terms of use, while 100 copies are OK? Copies of copies are OK?

It seems like, if this is what you are saying, that even software could not be safely licensed under contract, since if the licensee made a copy in violation of the contract, any copy of that copy would be a free good?

My argument is that the reason IP is illegitimate is BECAUSE it gives A a right to tell C how he can use HIS OWN PROPERTY–his body, paper, ink, materials, etc. Can you not see the difference?

I see that you keep coming back to this theme, but I fail to see how you make it hang together under the facts given. If I own mining equipment, but not mineral rights, I can’t use my equipment to mine for gold. It IS my equipment, my property. Are you saying that is wrong? That this violates some libertarian principle of property? I should be allowed to use my own property to mine gold wherever I want?

We are talking about a case wehre C did NOT buy anything from A, that has a legitimate servitude attached to it. Where C never owned or touched or possessed an object that A manufactured and sold to B. Do you not get this? Are you really this blind?

I get it. I just don’t see how you get there. If each and every legitimate copy was made either from the original manuscript or a copy made by the author, how can C get one (without a limitation of use) to copy from. At what point in your little scenario did a copy get made that didn’t depend on a violation of the limitation? How do you get a copy to C without any limitation? It seems like you are employing magic to make your case that C is unaffected by the limitation. I know you don’t believe in magic, so explain it to me.

A copyright, say, lets the copyright holder tell everyone else that they cannot use their own bodies and paper and printers in a certain way. The copyright holder has a veto over how everyone else can use their own property. This is like a negative servitude. But it was never agreed to. So it’s illegitimate.

This is illogical, even if you repeat it 1,000 times.

If “everyone else” is directly making copies of a book, and this book has a limitation of use, “everyone” can simply a)let it lie, or b) take it and use it for the purpose of making copies. If they choose a), how is anyone telling them “they cannot use their own bodies and paper and printers in a certain way.” You have repeatedly corrected me by saying that “rights are not limited, actions are”. If the act of “copying this book” is limited, how is using your own paper to do it legitimate?

I can use my own hammer to break into a car. Is that OK?

OK. The servitude does IN FACT impose limitations on use ON THE OBJECT SOLD BY A (author) TO B (book successor to A).

I am not talking about the object sold by A to B. In fact A may have IP rights in non-objects: an invention embodied in a patent filing, say. The servitude I am talking about is the right patnet law gives to A to tell C what C may not do with his own property (his body, his paper, etc.).

I got that the first 999 times you said it. How, (you are switching to patents, shame, shame) does C make a copy of something he doesn’t have? If he has it, so he can copy from it, explain how he got it without rights being violated before he got it. Each and every copy that exists before he got one has a limitation of use, just like the original. C is going to make a copy with this own paper and ink. How is what he is copying from suddenly and magically free of any limitation?

Wildberry. If A sells a book to B, then perhaps A has a servitude on that physical object that is (mostly) owned by B. B can use it for X purposes but not for Y purposes. But that is just an arrangement between A nad B.

What kind of arrangement? Is it a contract or a servitude? Was the physical object you refer to here, burdened by the servitude BEFORE or AFTER B took possession? If before, who created it?

I don’t care b/c I am just granting this arguendo. I am just saying htat EVEN IF B is bound to A, then that does NOT BIND C.

You are granting what “arguendo” (legal mumbo jumbo)? A contract or a servitude? Because if the former, I agree. If the latter I don’t think you are granting anything like a servitude. That’s why I ASKED, and I suppose why you did not answer other than to restate your conclusion.

I am not surprised that you want to appear like you are answering me, but in reality it is obvious you are not. You just come up to the line of illogic, and revert to your tried and true contracts argument about privity and expect that the “laymen” will not notice. But, I noticed. No matter how hard you try to hide the pea, I can figure out which shell it is under.

I think your argument ultimately rests on “we have IP because we have the state”, but are unwilling to distinguish that from “we have trespass because we have the state”. Or perhaps you will now switch to the long-awaited “servitudes don’t apply to movables” argument?

Stephan Kinsella July 8, 2011 at 4:04 pm

NOt at all. I have in fact explained to you over and over that the co-ownership arrangement between A and B cannot affect C’s property.

Maybe I don’t get it because of this “co-ownership” thing you keep bringing up. When A sells to B, how do you determine whether A and B are co-owners?

Ownership is the legal right to control a scarce resource. If A and B create a situation where they both have the right to control then they are co-owners. For example if I give you a usufruct for life to live in this house but I own the whole thing when you die, I am the naked owner and you are the usufructuary. If you own property but I have a right of way, we are co-owners but it is asymmetrical. If you own a house but I have a right to prevent you from painting it orange, we are co-owners. IP makes IP holders co-owners with others.

Suppose I tell you the plot of the Star Wars [sorry, wrong science fiction] movie I heard some guys talking about at a cocktail party. You then write a novel about Wildberry Calrissian’s new Adventures. Just use your imagination.

I can appreciate why you want to escape from this simple fact pattern and introduce something like derivative works. That makes everything very complicated, and if I try to answer you in any detail, everyone will get confused, especially those baffled laymen.

Not true. To defend Ip you have to defend all these hard cases. A few narrow cases that can be protected by contract alone is not enough.

As you know, naturally, you are raising a very special case of “indirect copying” under copyright law, for which the proof of circumstantial evidence is required. There is no way we can discuss that intelligently unless we have created some foundation of agreement or disagreement on the general case: direct copying.

I gave you an example of this earlier: someone reads a book aloud and D records it from his property.

So, I wonder if you can just stick to what I’m calling the general case, where the act in question is direct copying. That keeps things simple.

Direct copying is not the general case at all.

Say I get a .doc file attached to an email sent to me over the internet. I mean there are millions of ways.

Are you trying to say that this file you imagine is not a direct copy of the original book the author released under conditions of limited use?

Information such as this is the result of a direct copy. sure. So?

One copy is a violation of terms of use, while 100 copies are OK? Copies of copies are OK?

B may violate his contract or servitude etc. w/ A if he copies it. But that means he is liable. That does not mean people he reveals the information to are liable.

It seems like, if this is what you are saying, that even software could not be safely licensed under contract, since if the licensee made a copy in violation of the contract, any copy of that copy would be a free good?

Correct.

I see that you keep coming back to this theme, but I fail to see how you make it hang together under the facts given. If I own mining equipment, but not mineral rights, I can’t use my equipment to mine for gold. It IS my equipment, my property. Are you saying that is wrong? That this violates some libertarian principle of property? I should be allowed to use my own property to mine gold wherever I want?

no, but only b/c the use of it here USES THE SCARCE RESOURCES OF ANOHTER OWNER (the land/mineral rights). If I print a book I do not use your scarce resources.

If each and every legitimate copy was made either from the original manuscript or a copy made by the author, how can C get one (without a limitation of use) to copy from.

Supose I go to your house and at your birthday I sing “Happy Birthday to you”. Soon everyone learns this song from me. Yet I was violating a copyright agreement with the creator! How does this make YOU bound?

Peter Surda July 10, 2011 at 1:37 pm

I’ll post at the end since I have problems navigating.

Wildberry,

Yes.

Well done. Could you also tell me if copying is a use of the material the copy consists of as well?

Because an act of copying (exact duplication) cannot be accomplished without the object itself.

Just to confirm: the reason why copying is a use of the original is that the acts of copying and authoring are causally related? I also asked you in a different thread if using someone else’s property requires their permission, but did not notice a reply. Furthermore, what is the difference between exact duplication and other (presumably non-exact) duplication?

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