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Source link: http://archive.mises.org/17398/intellectual-property-rights-as-negative-servitudes/

Intellectual Property Rights as Negative Servitudes

June 23, 2011 by

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. Patent and copyright permit the holder of these rights to prohibit certain uses of their own property. For example, in the case of patents, NTP, by virtue of its patents, could prohibit RIM from making Blackberry smartphones (using its own property, even its own designs)–and could use this veto-right to extract $600M from RIM to permit RIM to use its own property as it wanted to. And Genzyme can prevent competitors from making a drug similar to Fabrazyme, because of its patent monopoly (because it’s a life-saving drug in short supply, this is helping to kill people). In the case of copyright, for example, J.D. Salinger, author of Catcher in the Rye, convinced U.S. courts to ban the publication of a novel called 60 Years Later: Coming Through the Rye.” And in Canada, when a grocery store in Canada mistakenly sold 14 copies of a new Harry Potter book a few days before its official release, a judge  “ordered customers not to talk about the book, copy it, sell it or even read it before it is officially released at 12:01 a.m. July 16″ (on both cases, see Atlas Hefts: The Sequel!).

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).

This is strikingly similar to what is called a negative servitude in civil law jurisdictions such as Louisiana, and to what is called a negative or appurtenant easement in the common law. See the definitions below, taken from my Louisiana Civil Law Dictionary (with Gregory Rome, forthcoming 2011, Quid Pro Books) (entries to the Louisiana Civil Code articles cited below can be found online here):

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

Predial servitude. A “charge on a servient estate for the benefit of a dominant estate.” La. C.C. art. 646. The two estates must be owned by different owners. Predial servitudes are either apparent or nonapparent. Similar to an appurtenant easement at common law.

Dominant estate. The land that enjoys the benefits of the charge placed on a servient estate by a predial servitude. See La. C.C. art. 646, 647.

Servient estate. The land burdened by a predial servitude. See La. C.C. art. 646.

Apparent servitude. A predial servitude that is perceivable by “exterior signs, works, or constructions,” e.g., a road or a window in a common wall. La. C.C. art. 707.

Nonapparent servitude. A predial servitude without any outward sign of its existence, e.g., building restrictions. La. C.C. art. 707.

Conventional servitude. A servitude established by contract. See La. C.C. art. 654.

Personal servitude. “A charge on a thing for the benefit of a person.” La. C.C. art. 534. The three major personal servitudes are usufruct, habitation, and rights of use.

The common law concept of appurtenant easement is similar. It’s defined at law.com as follows:

appurtenant easement: adj. pertaining to something that attaches. In real property law this describes any right or restriction which goes with that property, such as an easement to gain access across the neighbor’s parcel, or a covenant (agreement) against blocking the neighbor’s view. Thus, there are references to appurtenant easement or appurtenant covenant.

The common law equivalent of a negative servitude would be be a negative easement (like a restrictive covenant).

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.

Now the parallels between patent and copyright and negative servitudes should be obvious. The concept does not apply exactly: first, negative servitudes apply to land (immovable or realty), not movable property or personalty, while patent and copyright apply to all types of corporeal property: to how one may use his immovable property (land and factories) and well as movable property (computer, paper, and even one’s own body). Further, while a negative servitude is a predial servitude that gives the veto right to whoever owns a given tract of land known as the dominant estate, patent and copyright give the veto right to a designated IP holder; so in this respect, patent and copyright are more like a personal than a predial servitude. The positive law does not have an exact parallel to categorize IP in terms of servitudes precisely because the state grants IP rights and considers them valid, and to treat them as servitudes would make it obvious that they are illegitimate since they are not voluntarily agreed to.

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.

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.

In other words, it is quite clear that patent and copyright divest owners of property (and self-owners of their bodies) of some of their property rights by assigning to IP holders a negative personal servitude that was never purchased by the holder or contractually or voluntarily sold by the original owner. This helps make it clear that IP robs people of property rights.

[c4sif]

{ 141 comments }

Jim June 23, 2011 at 1:47 pm

That’s an extremely thought-provoking fresh take on the issue. I can’t wait to fully digest the nuances of the entire argument, and use it in future debate with my pro-IP fellows.

Kid Salami June 23, 2011 at 2:46 pm

It “occurred” to you? Ha ha – was that before or after i pointed out this rather obvious fact and you replied to me that:

“….It does have to do with property rights in scarce things, and has nothing whatsoever to do with IP.”

http://blog.mises.org/17228/hayek-contra-copyright-laws/#comment-786704

You also said to me:

http://blog.mises.org/16855/state-or-private-law-society/#comment-779267

“then you are making a sort of Georgist-Lockean-proviso argument that means NO property can ever be homesteaded, even movable property–for there is no relevant distinction between an apple and a bucket of water and a tract of land–all are scarce resources. If you can’t ever own land you can’t own anything else, even including your own body; and all civilized life would be impossible.”

To repeat, you said “no relevant distinction…all are scarce resources”, because this suited your purpose to get away from my questions.

Now in this article you say:

“These legal concepts apply to immovable property or realty such as land…”

Suddenly now there is a “relevant distinction” ie. different rules for “immovable property”? Why? Is this part of some grander theory, does it flow from something else? Or is it simply because this suits your purpose here?

I think your “theory” is a house of cards and that this is becoming increasingly clear.

Stephan Kinsella June 23, 2011 at 3:09 pm

I have since the very beginning pointed out that the problem with IP is that it assigns property rights of one person to another, by giving the latter a veto over the former’s use of property. The only thing that has dawned on me is that the legal concept of negative servitude is a traditional classification that more or less fits this idea. I’m just fitting it into traditional legal categories.

The earlier comment was correct: Hoppe’s idea of homesteading use-easements (servitudes) has nothing to do with the standard justification for IP. Unlike the negative servitude that is IP, the ones Hoppe was talking about were acquired by use–homesteaded. Since IP rights are not homesteaded then Hoppe’s discussion of how one might homestead limited use rights (servitudes, easements) has nothing to do with it.

the rest of your post is confused. I am pointing out that the standard legal concept of negative servitudes does in fact only apply to land. However, I am arguing as a libertarian that there is no conceptual reason why this has to be so; we can extend the concept for classification purposes, to cover all types of scarce things–both movable and immovable.

Far from being a house of cards, the proper way to dissect and analyze the sham that is IP is becoming ever clearer and more refined.

Wildberry June 24, 2011 at 10:47 am

Before I respond to your “insighful” article, I want to offer my witness that this issue was initially raised by Kid Salami, and you and others (Surda, Sweatervest) have denied the relevancy and validity of the discussion from the outset. Now it “occurrs to you”…

Does that mean that you suddenly caught the original meaning of the question? That appears to be the case.

Kid Salami June 24, 2011 at 4:21 pm

Wildberry – you may recall this thread where you punctuated the stream posts saying how stupid you/we are by suggesting a connection between easements and IP. I replied that I’d already come to that conclusion – in fact, i made this connection this literally the very first time I saw an easement defined, even if the details I have only now fleshed out.

Now I have to read a post where the people gurn about what a fantastic connection this was and what idiots anyone who isn’t in the club must be. Christ on a bike.

Peter Surda June 25, 2011 at 4:41 am

Kid Salami,

I don’t recall ever Stephan saying that it is impossible to enter voluntarily into an agreement that restricts your choices. Merely because the law or legal theories defines multiple ways of doing this, does not change anything.

An analogy only gets you halfway. The issue is to pinpoint the distinctions, like I attempted to explain in another thread in a reply to you, maybe you have not read it yet. If IP was a valid restriction, it would either have to apply to all matter (which eliminates the possibility of easements or negative servitudes, because these apply only to specific property), or you would need to assume that the immaterial can be property in the first place (thus making the argument circular). So, Stephan’s article has no effect on the validity or invalidity of IP. It’s just a curious historical fact, in my opinion pointless. Does not prevent Wildberry from entering the state of fanatic trance though.

Stephan Kinsella June 25, 2011 at 9:45 am

Peter, “If IP was a valid restriction, it would either have to apply to all matter (which eliminates the possibility of easements or negative servitudes, because these apply only to specific property), or you would need to assume that the immaterial can be property in the first place (thus making the argument circular). So, Stephan’s article has no effect on the validity or invalidity of IP. It’s just a curious historical fact, in my opinion pointless.”

Can you elaborate? Do you mean the negative servitude point? I am not sure what you mean by historical fact. I am trying to explain the nature of the IP rights granted by the state–how to classify them. Do you say the classification effort is pointless? It seems to me to help explain why these rights are illegitimate–because a servitude, to be legitimate, must be contractually created; but IP is not, so it’s obviously a taking of property. Does this not make sense to you?

Peter Surda June 26, 2011 at 10:33 am

Stephan,

my apologies, I’m not spending much time thinking about IP at the moment. I reread your article just to make sure I didn’t misunderstand something.

I’m sort of a minimalist, I do not have the necessity to classify right violations. Essentially I said the same thing as you: comparing negative servitudes to IP is problematic because IP applies to you regardless of whether you agreed to a contract.

Stephan Kinsella June 26, 2011 at 11:28 am

Peter–gotcha. I think we mostly agree here. As usual… :)

Kid Salami June 24, 2011 at 4:21 pm
Wildberry June 24, 2011 at 5:52 pm

Kid Salami,

I had forgotten about this exchange, but I remember now.

I laughed out loud when I saw Kinsella’s intro this morning. Cheese and Rice! What chutzpah!

You have been pounding the point for days, maybe weeks now. It’s bad enough to attract the wrath of righteous scorn from the party faithful, without anyone giving it a serious response, but for the main cheer leader to come out with the whole concept as “something that recently occurred to me” is well, audacious.

Ronald Reagan reportedly had a slogan on his desk that said something like; “There is no limit to what you can accomplish if you are only willing to give others credit for it.”

Needless to say, Kinsella is not likely a fan or Reagan. I guess it kinda goes along with appealing to yourself as authority from your upcoming, yet0-to-be-published legal dictionary. Not that he is wrong about the definitions, but it is in his words, a little “crankish”.

Anyway, as I said to Surda, the water is rising around the ancap/anti-IP arguments. They’re looking a little threadbare, to my reckoning. Perhaps that helps explain the strident tone.

Stephan Kinsella June 25, 2011 at 12:19 am

This is really not that hard. Some of you IPers try to argue for IP by saying it’s analogous to a HOMESTEADED easement, meaning a partial-use right. We say no, b/c it’s not homesteaded like an easement is. If I walk across an area for a long time I may acquire a right to use it in this way–a right of way, etc. If someone else then more fully homesteads the tract of land they do so subject to my earlier easement.

But in IP I just think of way to use my own property. That is not the type of easement that is acquired by homesteading, so the analogy does not show that IP could be justified.

In the current post (and I am not claiming ownership of this servitude idea; if someone else has made this observation before in the literature, fine by me), my argument is that–as I have argued since the beginning of my attacks on IP–the problem with IP is that it gives third parties the right to control others’ property–the veto right. This is why in my 2000 LRC piece http://www.lewrockwell.com/kinsella/kinsella2.1.1.html I referred to IP’s “second homesteading rule,” i.e. a homesteading rule other than the Lockean one of first-use, i.e. assigning control-rights to a second person, a latecomer, that override the ownership rights of the Lockean homesteader. All I am saying in the current post is that this reality, the way IP does in fact work, can be legally classified as being similar to a negative servitude *in operation*. HOWEVER, normal negative servitudes are legitimate because they are acquired contractually, voluntarily. Yet it is obvious that the negative servitude that is IP was NOT given voluntarily by the owner of the servient estate. Rather this property right is wrested from him by the state, by granting the veto right to the patentee/copyright holder. That is *why* it’s illegitimate. Classifying it as a negative servitude helps to explain what is pernicious about IP.

Peter Surda June 25, 2011 at 4:29 am

Wildberry,

Anyway, as I said to Surda, the water is rising around the ancap/anti-IP arguments. They’re looking a little threadbare, to my reckoning.

Only in your head. That’s where you need to hide from logic.

Wildberry June 25, 2011 at 12:38 pm

@Stephan Kinsella June 25, 2011 at 12:19 am

I appreciate the response, but I really would appreciate it more if you would address the response I already provided here:

http://blog.mises.org/17398/intellectual-property-rights-as-negative-servitudes/comment-page-1/#comment-789315

I have already addressed the points you raise here, above. Let me try to restate in the context of this latest post:

That is not the type of easement that is acquired by homesteading, so the analogy does not show that IP could be justified.

No one is relying on the homesteading principle to establish an easement, so I don’t know why you even bring this up. We are talking about servitudes which is acquired by the burdened landowner which is, by accepting of the condition of limitation as a condition of acquisition, a purely voluntary act. Likewise when a person acquires a protected work, it is a voluntary act, as I argue above.

the problem with IP is that it gives third parties the right to control others’ property–the veto right.

This is the mother-load assumption which allows you to come to such a strange conclusion.

You are saying that other’s have unlimited property rights , and AFTER THE FACT, IP comes along and establishes a veto power against the other’s rights? What a bizarre way of trying to look at property rights.

That is equivalent to saying that you have a bat, and that because you didn’t voluntarily agree to limit the use of your bat, you have the unlimited rights of use to bash my head. Unless I have the power to veto your use, you would otherwise be free to use it however you wish, i.e. to bash my head.

As I already explained above, property rights are not a “veto power”. They are a LIMITED right of exclusive use and possession. Without any prior agreement, contract, or any other device, when you acquire a bat, your rights are already, automatically limited to uses which do not violate the rights of others. That is the condition under which you agree to acquire the bat.

The correct way of describing property rights is they secure an unlimited and exclusive right of use to the extent that use does not infringe upon the rights of others. NAP in a nutshell.

The difference between this inherent limitation of use, and the specific limitation of a servitude is 1) the act would not otherwise be limited; 2) it is initially created by voluntary acceptance of the limitation by the person who will be burdened; 3) after created, it runs with the land, provided future BFPs have notice.

If we simply substitute the limited application of servitude in real property, and apply the concept to ALL property, you have a good explanation of how and why IP operates the way it does. Because it is secured as a PROPERTY RIGHT, it follows the general principles of property rules. There is nothing odd or insidious about it, in this regard. It is a pretty good analogy.

This is why in my 2000 LRC piece http://www.lewrockwell.com/kinsella/kinsella2.1.1.html I referred to IP’s “second homesteading rule,” i.e. a homesteading rule other than the Lockean one of first-use, i.e. assigning control-rights to a second person, a latecomer, that override the ownership rights of the Lockean homesteader. All I am saying in the current post is that this reality, the way IP does in fact work, can be legally classified as being similar to a negative servitude *in operation*.

You agree here that the way IP works is similar to a negative servitude. We can agree.

Where we disagree is that this has anything at all to do with homesteading. Rights of use (meaning the actions you may take with your own property, no need to nit-pick) are always limited by the rights of others. If there are 10 people in the world, and the 11th is born, is this child a “latecomer” who has no rights under NAP? If she does have rights, then is it appropriate, under your analysis, to say that as a latecomer, she imposes a second homestead on your property, thus further establishing a “veto power” over your own private property?

No wonder this leads to confusion of the operation of property rights. To repeat, you cannot divest a property right you do not own. You cannot defend a right you do not have. You cannot acquire copyrights on a work before you acquire the work, and propose to “divest” them when the book is acquired.
This would require that everyone have an inherent right to use works that have not yet been authored. I think you support this idea, and this explains why you will not address the externality issue related to incentives to produce intellectual works.

To do so would require that you grant public rights to all private production that you only “divest” if you do so voluntarily. This is why you are sometimes seen as advocating socialism. Your theories of private property leads you to a conclusion that all production is ultimately a public good, and this rights to it are “divested” based on a homesteading principle of first use.

This conflicts with your earlier admission that an author owns his original manuscript. If he owns it, he must, according to you, have homesteaded it. Yet if he shares it, he “divests” his ownership rights and it becomes a public good. Yet you don’t equally hold that if a landowner gives permission for someone to come onto his land, that he has “divested” his right to later exclude him. Would you say that if the trespasser is excluded by coercion, that his right to trespass has been “wrested from him by the State”

Doesn’t that seem like a contradiction in the way you analyze property rights for IP and all other property rights?

HOWEVER, normal negative servitudes are legitimate because they are acquired contractually, voluntarily.

Do you actually read what is posted here? Books are acquired voluntarily, under conditions of copyright, which was established as a legal condition prior to your acquisition.

Yet it is obvious that the negative servitude that is IP was NOT given voluntarily by the owner of the servient estate. Rather this property right is wrested from him by the state, by granting the veto right to the patentee/copyright holder. That is *why* it’s illegitimate. Classifying it as a negative servitude helps to explain what is pernicious about IP.

And this is how you reach this bizarre conclusion.

First, the reason we distinguish between easement and servitude, is that an easement involves two “estates”, while a servitude only involves one, the one that is burdened with the limitation of use. To use easement and servitude interchangeably equivocates on that distinction.

Second, what “estate” are you referring to here? You seem to be implying that the “estate” is the “paper and ink” already owned by the second party, which is not burdened by a servitude. This is correct in the limited sense that all property rights are unlimited to the extent that their use does not infringe on the rights of others. That is an inherent limitation of all property rights.

But the burdened property in this case is the work (fixed in tangible medium). The work is what carries the condition of limited use. That work, except by the original author, must be acquired through a distribution channel which leads, causally, to the original. No one is confused as to whether they are or are not the author. No one is confused about whether they are acquiring a work of another.

Each duplication of that original work is burdened with a limitation of use (and non-limited uses; i.e. Fair Use Doctrine), which any person who voluntarily acquires a copy, does with notice of this burden of limited use.

So, all that has been accomplished here is to offer an analogy to the operation of property rights that are equally valid for both real property and IP.

The normative question which has not been addressed is whether establishing property rights in IP is legitimate in principle. This is an economic question, because the ethics of private property are well established; We own what we make with our own private means of production.

All of this ranting about how IP operates in a manner that violates the rules of property can be dismissed. The question is not whether IP operates AS property, since by definition it IS property, and therefore follows the same rules as any other property.

Copyright is a specialized area of the law because, unlike other economic goods, when a work is disclosed through sale or any other means, you are also disclosing and making freely available the MEANS OF PRODUCTION. That is the specialized problem that cannot be handled by other branches of property law.

So the normative questions are 1) should we preserve the principle of private property when the private means of production run with the good; and 2) preserve public access to ideas, knowledge, art, literature and inventions?

The answer is that we should do both, for sound ethical and socially beneficial reasons. AET shows us that society is most benefited by a social system which secures private means of production, and free exchange of goods, ideas, and other works of private production.

To support only objective 2), as you do, undermines private property rights. To support only objective 1) violates the “ideas are free” principle of public access and free speech, supported both by me, and the laws of copyrights. Ideas are and should be free.

Therefore copyrights, and IP in general seeks a policy which balances these two important objectives. This is no different than a criminal policy which seeks justice for victims, balanced with protections for the accused.

IP exists within the bounds of libertarian ethics and AET principles. You obscure this by resorting to the “we have IP because we have the State” ideology of the Ancap party line. All “true” libertarians are not Ancaps. It is not necessary to bend the concepts and rules of law in order to make a libertarian case.

Stephan Kinsella June 25, 2011 at 2:15 pm

Nymberry:

No one is relying on the homesteading principle to establish an easement, so I don’t know why you even bring this up. We are talking about servitudes which is acquired by the burdened landowner which is, by accepting of the condition of limitation as a condition of acquisition, a purely voluntary act. Likewise when a person acquires a protected work, it is a voluntary act, as I argue above.

This is ambiguous. What is a “work”? In copyright a “work” is the intangible pattern of information itself; if this is waht you mean, you are for the ten thousandth time begging the question, which is why no one can take you seriously or fail to think you are eihter daft or dishonest.

If you mean an owned object, then sure, what you are describing is a co-owenrship situation, e.g. when the book owner (seller) “leases” partial rights in it to a “buyer”. Of course this model cannot work in the real world, but even if it did, it only binds the “buyer” (lessee).

You are saying that other’s have unlimited property rights ,

Not sure what “unlimited” means. A property right is the exclusive right to control a resource. What does it mean to be “unlimited”?

and AFTER THE FACT, IP comes along and establishes a veto power against the other’s rights? What a bizarre way of trying to look at property rights.

Yes, it is bizarre, but this is what happens: A owns his property, A never grants a servitude to B, but the law just willy nilly grants to B a servitude that A never agreed to. See?

That is equivalent to saying that you have a bat, and that because you didn’t voluntarily agree to limit the use of your bat, you have the unlimited rights of use to bash my head.

No. It is saying that if I don’t grant you a right to tell me that I can’t use the bat for *otherwise peaceful* purposes, you don’t have this right.

You are being disingenuous again. Iti s almost amusing to see, because by your squirming and lying you show how bankrupt the IP case is–if people can defend it only by your tricks, it must be bankrupt indeed. What you are saying here with the bash-head example is that you can’t use your property for any action–you can’t use it to murder–”therefore” property rights are “not unlimited” and “therefore” how can we complain if it is limited?! This does not follow at all, as anyone with a modicum of sense and honesty can see. Just because my ownership of a gun does not mean I have the right to commit murder does not mean that your gun confiscation laws are permissible. You have to show that a given restriction on use of property is justified. Of course if it is used as means to commit aggression the fact of ownership does not serve as a defense. So what? You are not talking about a case of aggression.

Unless I have the power to veto your use, you would otherwise be free to use it however you wish, i.e. to bash my head.

But the veto is over the action–murder–no matter what means are employed to achieve it. It is a limit on action, not on propety rights.

You agree here that the way IP works is similar to a negative servitude. We can agree.

Where we disagree is that this has anything at all to do with homesteading.

No, my view is that because it has nothing to do with homesteading, it is illegitimate.

This conflicts with your earlier admission that an author owns his original manuscript.

What is a manuscript? Do you mean the object,or the pattern embedded in it? You cannot own the universal of the pattern, of course. You can only own the object. And ify ou sell it, you don’t own it.

If he owns it, he must, according to you, have homesteaded it.

If by “it” you mean the physical book object, sure, he either homesteaded it, or bought the material from some previous homesteader; then he transformed it to rearrange its shape and utility.

Yet if he shares it, he “divests” his ownership rights and it becomes a public good.

See, here is the equivocation. by “it” you mean the pattern, but earlier by “manuscript” you meant an object. Typical dishonesty. Equivocation.

Wildberry June 25, 2011 at 9:32 pm

@Stephan Kinsella June 25, 2011 at 2:15 pm

Just once, I wish you would give a sincere response to the points being raised.

This is ambiguous. What is a “work”? In copyright a “work” is the intangible pattern of information itself; if this is waht you mean, you are for the ten thousandth time begging the question, which is why no one can take you seriously or fail to think you are either daft or dishonest.

Gee, what have we been talking about? What is the subject matter of your article on Servitudes? Don’t you use the terms “IP” and “copyrights”. But when I use them, they’re ambiguous? Cheese and Rice!

As you know, Mr. legal dictionary, the subject matter of copyrights, the “work”, is an original work of authorship (I hope you don’t need me to quote the statute definitions again, do you?) fixed upon a tangible medium. The work is the combination of the medium and the “pattern” fixed upon it. As you know, a work is not the subject matter of copyrights until it is fixed, and it cannot already exist, i.e. it must be “original”.

You may be thinking, “Sure, but the property rights are secured in the intangible work”. Yes, but that can only be secured if it is fixed first. At that point it is the “work”, not the blank paper, to which property rights attach. The medium is merely a necessary artifact of the intangible work. It is the fixation of the work, not the medium that is relevant to property rights. This is contrary to your claim, which is that only the paper matters; follow the paper and you know all you need to know about property rights. IN terms of property rights, there is no distinction between blank paper and paper upon which has been imprinted a literary work. Talk about bait and switch! What kind of logic is this?

If you mean an owned object,

Duh! Yes, the owned object that is the subject matter of copyright law. “Work” is a noun, OK?

then sure, what you are describing is a co-owenrship situation,

I
don’t see how you can assume that, but let’s see where this goes…

e.g. when the book owner (seller) “leases” partial rights in it to a “buyer”. Of course this model cannot work in the real world, but even if it did, it only binds the “buyer” (lessee).

(Sigh! Second, bigger sigh!!) How did “leases” get introduced to this discussion? I thought we were discussing the concept of servitude? Are you conflating contracts and property again?

In any case, a lease does not create “co-ownership”, whatever you mean by that. (talk about ambiguous). A lease creates rights of possession in the non-owner leasee. Has it been that long since you studied property laws again?

Not sure what “unlimited” means. A property right is the exclusive right to control a resource. What does it mean to be “unlimited”?

I’m sure you must have an English dictionary coming out soon. By “unlimited” I mean “without limits”. Is the “exclusive right to control a resource” unlimited? Or are those rights always circumscribed by the rights of others? I believe we agree (please don’t nit-pick the difference between “right” and “actions”, it’s meaningless) that it’s the latter. You own your feet but you can’t use them to trespass on my property, right?

and AFTER THE FACT, IP comes along and establishes a veto power against the other’s rights? What a bizarre way of trying to look at property rights.

Yes, it is bizarre, but this is what happens: A owns his property, A never grants a servitude to B, but the law just willy nilly grants to B a servitude that A never agreed to. See?

Did you read the part in my post about you confusing (giving you the benefit of the doubt) what “property” the servitude refers to? The servitude in question refers to the “work”, not paper you owned before you acquired the “work”. OK?

That is equivalent to saying that you have a bat, and that because you didn’t voluntarily agree to limit the use of your bat, you have the unlimited rights of use to bash my head.

No. It is saying that if I don’t grant you a right to tell me that I can’t use the bat for *otherwise peaceful* purposes, you don’t have this right.

Uh, hello? As the owner of the “head” in question, I do not need to “grant” you anything. By virtue of me owning my head, you do not have a right to bash it, even if you use your own property to do it. As the owner of the “work” in question, I do not need to grant you the right to use your paper for non-infringing purposes. Your rights in your paper, and everything else you own, is limited already by the rights of others.

All you are really leading yourself back to is the assumption that I can own my head but not my “work”. Everything else is just misdirection.

You are being disingenuous again. Iti s almost amusing to see, because by your squirming and lying you show how bankrupt the IP case is–if people can defend it only by your tricks, it must be bankrupt indeed.

What is good for the goose is good for the gander…or perhaps the kettle is calling the pot black?

What you are saying here with the bash-head example is that you can’t use your property for any action–you can’t use it to murder–”therefore” property rights are “not unlimited” and “therefore” how can we complain if it is limited?!

No, you can complain about any particular limitation. Is it necessary to re-create the entire scope of common sense to have a meaningful dialogue here? What takes precedence, my rights to my head or your rights to your bat? How do you know that?

Therefore, property rights are inherently limited by the rights of others. That is what creates the limitations on the use you can make of your own, private property. In addition to those limitations, we can create additional ones. For example, you cannot use your own, private car to travel at 150mph through a school zone. But you DO still own your car, right? Or are you saying that you have granted to the school the right to “veto” your desire to use excessive speed?

This does not follow at all, as anyone with a modicum of sense and honesty can see.

That’s what I thought, yet it is still necessary that I go through this elementary logic as if I’m saying something that you don’t already know. What do you call it when you deny something you already know? There must be a word for that…

Just because my ownership of a gun does not mean I have the right to commit murder does not mean that your gun confiscation laws are permissible.

Yes. So?

You have to show that a given restriction on use of property is justified.

Naturally. Justified by what? I know you know I know, so just say it.

Of course if it is used as means to commit aggression the fact of ownership does not serve as a defense. So what? You are not talking about a case of aggression.

I certainly am. Defending a right you don’t have is aggression, yes? Defending a right you have is not aggression, true? How can you tell if it’s aggression or not? Well, I would suggest you have to assign rights before the act. Then we can tell who is defending and who is aggressing. Isn’t that the point of NAP?

Unless I have the power to veto your use, you would otherwise be free to use it however you wish, i.e. to bash my head.

But the veto is over the action–murder–no matter what means are employed to achieve it. It is a limit on action, not on propety rights.

First you blur distinctions that make a difference, then you make distinctions without a difference.

The limitation is against your right to “murder with your bat”. That is a right that does not come bundled with the ownership rights of your bat. Who, in the imaginary real world that you and I share, would have the responsibility for knowing that, and who would be held liable for violating that use?

Are you implying that it is up the all of those people with a head to make sure they track down everyone with a bat and make sure they understand that, relative to my head, their “unlimited rights of exclusive use’ is limited? Or do we simply secure the property rights of everyone’s head, and hold people accountable for not going along?

You agree here that the way IP works is similar to a negative servitude. We can agree.
Where we disagree is that this has anything at all to do with homesteading.

No, my view is that because it has nothing to do with homesteading, it is illegitimate.

Translation: You do not deny that if IP WERE property, for some ungodly reason, it would operate along the lines of a negative servitude, in that title can only be transferred with the burden to go along with the limitations on use.

Therefore, you must deny that IP can ever become property in the first place. Fine.

There are two interesting issues here, which as far as I know you have never addressed.

First, how can an author “own” his original manuscript, upon which he has fixed the ownable thing called a “work” if he has not homesteaded it on a first use basis? If he owns it, why can’t he transfer title to copies with limited use? If he can, he has a right to impose such limitations by contract, so why wouldn’t securing those rights by operation of property rules be legitimate?

Second, what is the economic justification for denying those rights, if in so doing you are requiring that the producer of the work produce for external economies?

This conflicts with your earlier admission that an author owns his original manuscript.

What is a manuscript? Do you mean the object,or the pattern embedded in it? You cannot own the universal of the pattern, of course. You can only own the object. And ify ou sell it, you don’t own it.

I believe we have nearly come full circle by now. I think we have established through our recent insights about servitudes, that an owner of property can sell it with limitations on use, and the legal device for doing that is a servitude. Therefore, your statement, “And if you sell it, you don’t own it may be conditioned by a servitude. You may own it with limitations, which you either voluntarily accept, or if it “runs with the property”.

The object that is owned cannot be distinguished separately from the work; property rules follow the object, while property rights are secured in the work. Together, they make up the owned object that is the subject of copyrights. That is, the author is not selling blank paper, but paper encoded with the pattern of his work. We agree that that is an object, and that in that state, the author owns it.

As a material object with a unique pattern upon it, it is for all practical purposes (i.e. greater complexity equals greater improbability), impossible to duplicate without the original pattern to copy from; i.e. it is original and unique. If someone is willing to pay for it, it is an economic good. As such, the owner may impose limitations on its use, much like a landowner may impose limitations on the use of property he owns as a condition of sale. Aren’t we covering plowed ground by now?

That is the point of the servitude analogy, right? What ethical, legal, or economic reasons are there to prevent the owner from doing such a thing?

When land is owned, there are no means available to copy it. When a sword is sold, it can only be copied if you duplicate the means of production at some cost and risk of failure. When a work is sold the means of production is attached to the good. This is the special property problem that is the subject of IP laws. The attachment of the means of production is the only problem that IP laws, in principle, solve.

If he owns it, he must, according to you, have homesteaded it.

If by “it” you mean the physical book object, sure, he either homesteaded it, or bought the material from some previous homesteader; then he transformed it to rearrange its shape and utility.

OK, for the sake of argument, what distinguishes a sword in which the owner of the means has transformed it using both scarce and non-scarce resources, and an author which transforms paper from “blank” to “encoded with an original work”? Doesn’t the owner in both cases have the right to impose limitations of use as a condition of sale?

Without regard to how these rights are secured, what is the basis for claiming legitimacy in one case and denying it in another?

Yet if he shares it, he “divests” his ownership rights and it becomes a public good.

See, here is the equivocation. by “it” you mean the pattern, but earlier by “manuscript” you meant an object. Typical dishonesty. Equivocation.

There is no equivocation, as you well know. “It” means “work” which is fixed upon the paper, which is the meaning of “manuscript”; a work fixed upon paper. The object has not changed at all. Where is the equivocation? The object is physical paper with a pattern of literary work fixed upon it. The name for that original work of authorship is, (let me check my dictionary), yep, a manuscript.

sweatervest June 27, 2011 at 12:07 pm

“the water is rising around the ancap/anti-IP arguments”

Says the person who just filled up a post with tangents about Reagan, “party faithful”, “main cheer leader”, and a bunch of gossiping about how lame Kinsella is.

Why, Wildberry, are you wasting your time here instead of running for office? Your ability to fill up paragraphs without saying anything at all is impressive to say the least.

sweatervest June 27, 2011 at 10:45 am

Just to point this out, Wildberry twists my posts into something completely different to serve his sophistical goals. I don’t recall stating it is irrelevant that IP is a means for its holders to prevent property owners from using their own property. In fact that was my main objection to it the entire time. Wildberry is so poor at grasping my arguments he thought my explanation that there is a reality out there that isn’t created by human minds was me claiming to be god-like.

Kid Salami’s posts about easements are completely missing the point and I have explained to him why. He seems to think that easements bind third parties to contracts but that is obviously not the case and he is only confusing the problem by introducing scenarios that are not concerning intellectual property. If he were honest he would stay on topic instead of distracting the entire debate into debating something completely different.

Kid Salami June 27, 2011 at 11:18 am

sweatervest – you’ll forgive me if i’m not overwhelmed by your counterargument that is that I’m “missing the point”. I’ll take it then that you’re not going to answer my questions.

Let’s make it real simple. Do you (completely or substantially) agree with the words with which Kinsella opens this post. That is, do you agree that a “way to classify the legal nature of intellectual property rights such as patent and copyright is the civil law doctrine of negative servitudes.”

Yes or no?

sweatervest June 27, 2011 at 12:13 pm

My counterargument is not that you are missing the point. The counterargument is that your claim that easements bind third parties is wrong which I have explained in more detail in several other places.

My answer is yes. IP is nothing more or less than people being forbidden from using their own property and requiring the permission of others to use their own property. Easements have nothing to do with that. Easements bind contract signers and no one else as I have already explained. There is no other part of contract theory that contradicts my IP position.

Kid Salami June 27, 2011 at 12:40 pm

“your claim that easements bind third parties”

You won’t answer my questions but then pop up elsewhere with your own imagined paraphrasing of my position – you do this a lot. Please quote my words if you want to attribute positions to me. If it was as simple as this one sentence I would have just said this to start with wouldn’t I?

“My answer is yes. IP is nothing more or less than people being forbidden from using their own property and requiring the permission of others to use their own property. Easements have nothing to do with that. Easements bind contract signers and no one else as I have already explained. There is no other part of contract theory that contradicts my IP position.”

So you say “yes”, you agree with this statement? Hang on, there is an addendum? What could this be? I see, you still want to cling to your original statement to me, when you said of my discussion of easements:

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

So your paragraph is self-contradictory.

Peter Surda June 27, 2011 at 12:43 pm

sweatervest,

I think you’re a bit too hasty in dismissing Kid Salami’s claim. In a way, his interpretation reaches the alleged problem and presents a somewhat meaningful objection.

On the other hand, I would say that Kid Salami is just confusing the situation (albeit probably not intentionally). Let me reformulate the problem so that it’s better understandable.

Kid Salami is asking: if A can be tricked by B to violate C’s rights, does this mean that C can have a claim against A even though there is no contract? My answer is that it is mixing several things.

The first thing is the question of whether such an act constitutes a violation of C’s rights. The answer is affirmative, the state of one’s mind has no effect on whether a violation occurred or not.

The second thing is the question whether C has a claim against A. Based on Stephan’s justice theory, I would say that C’s only claim on A is to stop violating his property right (e.g. return it). The rest of the claims are against B.

The third thing is incomplete knowledge. Incomplete knowledge does not influence whether violations occur, only whether the people analysing the situation think violations occur.

sweatervest June 27, 2011 at 1:01 pm

“You won’t answer my questions”

I answered all of your questions.

“but then pop up elsewhere with your own imagined paraphrasing of my position – you do this a lot”

Look if you’re failing to convey what you are trying to convey that is just as much your problem as it is mine. Feel free to explain your point again to correct me but that’s what I got from your post, and I can support that with things such as you claiming the third party is not allowed to build a factory on this land that has easements, as if he would be allowed to do anything, which he would not.

“If it was as simple as this one sentence I would have just said this to start with wouldn’t I?”

Haha then what *is* your point!? If you really did think I misrepresented you would just clarify what you said instead of merely protesting that I misrepresented it.

“So your paragraph is self-contradictory.”

I don’t see the contradiction, please tell me what in the world you are talking about. I still think IP and easements have nothing to do with each other and only bring them up in anticipation of you repeatedly bringing them up.

Peter Surda June 27, 2011 at 1:08 pm

BTW Kid Salami, you should try to formulate your questions more intelligibly. For example, you could have asked:

Someone purchases a hard drive with easement he’s unaware of, and then violates the easement, for example by copying a CD onto it, resulting in him being liable for “damages”. Does this mean that he is bound by some restriction, although he violated noone’s rights, nor signed a contract with such a restriction?

The simple answer is: he did violate someone’s rights, merely incomplete knowledge made it appear as if he did not.

A second question (presumably): If such hidden restrictions can appear anyplace, doesn’t this create problems?

A simple answer: hypothetically, it does, but from practical point of view it doesn’t. If, for example, such an easement existed, it would only cause problems if the easee did not know who has the drive, but at the same time knew how it is used. That does not sound very plausible. If you can track the usage of the hard drive, you can also track the posessor.

My conclusion is that the sale is invalid and the guy who thought he bought the harddrive did not actually buy it. He was a victim of a fraud. If he violates the easement provisions before knowing of them, the fraudulent seller is liable for damages. If he violates them after knowing of them, he is liable since he knows the drive is not his.

Wildberry June 27, 2011 at 1:18 pm

@ Peter Surda June 27, 2011 at 1:08 pm

Even though you are difficult to follow, I have two comments:

First, if you know how to rephrase the question, you must already understand it.

Second, you just confirmed your understanding of how IP and negitive servitudes operate in common. Took you awhile, but you finally got it.

Now tell me, why is this OK for land, and not IP?

sweatervest June 27, 2011 at 1:18 pm

“I think you’re a bit too hasty in dismissing Kid Salami’s claim. In a way, his interpretation reaches the alleged problem and presents a somewhat meaningful objection.”

Maybe so, in which case I must be misunderstanding what point he is making.

“On the other hand, I would say that Kid Salami is just confusing the situation (albeit probably not intentionally). Let me reformulate the problem so that it’s better understandable.”

That sounds like a good idea.

“Kid Salami is asking: if A can be tricked by B to violate C’s rights, does this mean that C can have a claim against A even though there is no contract? My answer is that it is mixing several things.”

Okay. This is more or less what I thought his point was. My objection is that the trickery is irrelevant to C and we could just as easily talk about A violating C’s rights period. In particular, that C made a contract with B that involves easements those easements have *nothing* to do with C forbidding A from using C’s property.

“The first thing is the question of whether such an act constitutes a violation of C’s rights. The answer is affirmative, the state of one’s mind has no effect on whether a violation occurred or not.”

Certainly. The fraud is not a valid excuse for A to trespass on C.

“The second thing is the question whether C has a claim against A. Based on Stephan’s justice theory, I would say that C’s only claim on A is to stop violating his property right (e.g. return it). The rest of the claims are against B.”

I agree. C can stop A from using his property, and if A damages C’s property at all during uninvited use then C has a claim against A for that. Then what about the claims against B? Well, if B is already in contracts with C and his defrauding of A is a breach of his contract with C then C has this claim against B. Otherwise C has no claim against B (for example, if some complete stranger I’ve never met stood outside my house and told a person he is allowed to enter my house, I cannot have a claim against the guy standing out there saying that, only the guy who enters my house).

But A always has a claim against B. A is the one that has been defrauded, not C. It is up to A to seek justice from B for being tricked into buying something he really did not buy.

Either way, A is not bound by any contractual terms that B may have agreed to with C. It is not those contractual terms, which do not even need to exist, that allow C to forbid A from using C’s property.

“The third thing is incomplete knowledge. Incomplete knowledge does not influence whether violations occur, only whether the people analysing the situation think violations occur.”

Right, but I thought in this scenario we had complete knowledge, i.e. that A was defrauded by B into thinking he had a claim to C’s property.

Thank you for clarifying Peter.

sweatervest June 27, 2011 at 1:24 pm

“Now tell me, why is this OK for land, and not IP?”

What is the common element!? I still fail to see how anything that has been said about easements, contracts, land use, C stopping A from using C’s property, or anything else has anything to do with IP.

Nobody is saying that you can make a claim to land without homesteading it or having it voluntarily traded to you. Easements do not conflict with that at all. IP is making a claim that you *can* make a claim to property without homesteading it or having it voluntarily traded to you. Where is the common element?

Seriously I think this has gotten out of hand. The anti-IP side claims there are two ways to own property: homestead it by being its first user or have it traded to you voluntarily. The pro-IP side claims there is a third option. All that has been said about easements is in line with homesteading and voluntary trading, *not* with an additional third option.

Kid Salami June 27, 2011 at 2:13 pm

All that stuff about how I’m unable I am to formulate questions and really should not be so stupid in future situations sounds great now after the fact.

Unfortunately, it is not quite so simple in that it ignores that I am not dealing with people who are sympathetic to my cause but who are sometimes wilfully misunderstanding and are in fact putting up blockades in front of everything I say – as I like to call it, “posturing” ie. defending a position.

To simultaneously explain something AND avoid powder keg words and phrases AND present the question to which I want an answer is much much harder than just explaining something to someone who genuinely wants to know what I’m saying.

So, do I have a point? Let’s see. Wildberry has beaten me to the key question – why is this ok for land but not in other scenarios?

(And I’m not asking because I don’t know – i understand the situation perfectly well. I’m asking because no matter what answer comes back, i’m 99% it will contradict some other part of the party line.)

Stephan Kinsella June 27, 2011 at 3:29 pm

Berry:

Second, you just confirmed your understanding of how IP and negitive servitudes operate in common. Took you awhile, but you finally got it.

Now tell me, why is this OK for land, and not IP?

I’m astonished you and Kid S. keep pontificating here without knowing much about the legal things you are using to make your “arguments”; not that you have to be a lawyer to understand this, but you need to keep things clear and be honest in debate. You are not.

Let’s separate some things. We IP opponents (at least I) am pointing out that the problem with IP is that it assigns to third parties partial ownership/control rights over how others use their property–a veto right. I have made this point for over 10 years. I am now saying that this veto right may be legally classified as a legal servitude: it treats property owners as servient estate owners, and grants a veto-negative servitude right to the IP owner. NOw that is the legal reality. HIghlighting this nature of IP rights helps to show why they are legitimate: because a negative servitude is legitimate only if it’s contractually granted by the servient estate owner. But the negative servitudes created by IP law are not negotiated; they amount to taking property from the servient estate owner and transferring it to IP owners. That is why it is illegitimate, and a taking.

Sometimes you IP advocates say “well all property rights are limited, so what’s the problem?” By this you mean something like, you can’t use your gun to shoot an innocent person, so their rights in their body limit your property rights in your gun. “Therefore” the IP opponent should not object to the limitations IP rights place on property. BUt this is fallacious for two reasons. First, your property in your body restricts me from killing you, but this is a restriction on my action, not on my property rights. I am prohibited from killing you with ANY means, whether owned or not. And the limitation is a *result of* property rights in scarce resources; it makes no sense to say property rights are limited because there are inviolable property rights!

Second, even if it is sometimes legitimate to limit others actions (or even their property rights), that does not mean that just any limitation is legitimate. By your reasoning you could say that a law granting to adult men the right to rape any single female cannot be objected to. After all, it’s just a limitation on the women’s rights to their bodies; but whoever said property rights in our bodies are absolute are unlimited, eh? After all you can’t use your body to murder someone, so property in our bodies is not unlimited. Therefore the women cannot complain that the rape law limits their property rights in their bodies, right? This is obviously ridiculous reasoning. The reason actions are limited is *because of* property rights; you may engage in whatever actions you like, so long as they do not trespass on others’ property rights in scarce resources. Violating others’ rights *is* a jsutification to limit your own rights. But you can’t just say that because there are sometimes limitations, that any limitation is justified. And in IP property rights are limited–nay, taken away (as the negative servitude exmaple shows)–for no good reason at all. The owner turned into a servient estate owner by IP has not agreed to the negative servitude, and he has not trespassed on the property of the IP owner, so there is no justification for this limitation.

Now, that is my argument.

You guys have some separate argument also involving the word “easement” and you had the temerity to try to conflate your shoddy argument with mine above, even though they have nothing to do with each other. In the above I am simply classifying the property limitations imposed on innocent owners by IP as “negative servitudes” to help make it clear how they are property rights takings or violations. In your argument, you are trying to extend the IP by contract idea. You are saying that the seller of a physical object can impose an easement on it so that the buyer takes it subject to an easement (or perhaps he only has an easement)–in either case the buyer does not have full rights in the object. This is nothing more than the old argument that you can create IP by contract, and you are dressing it up by calling it an easement. 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. This is all well and good but does not get you IP because IP prohibits D from using his own property to (say) make his own object similar in design to A’s/B’s object even though D never bought the object or even touched it. It is sufficient that he somehow *learns about* the nature of B’s object–maybe A sells a million of them and D sees it on the shelf at a store, and thinks it’s a clever design so he makes his own simlar object. If there is an “easement” on the objects A is selling, so what? All that could do is limit how D could use the object *if he bought it*. How can A’s and B’s private agreement prevent D from using knowledge he has obtained by interacting with others in the world? This is the gaping hole in your pathetic argument, and you seek to cover this deficiency up with your “easement” deflections and distractions.

There is another easement argument, one made by Hoppe et al.: the idea that certain limited uses of a scarce resource short of full homesteading may be viewed as a limited or partial homesteading–the homesteading of some limited use right, or easement–e.g., the right to travel across a parcel to get to the river. So if such an easement is established by use then someone who homesteads the tract has to homestead it subject to that use-easement. This is just standard homesteading theory and cannot justify IP at all, since the idea-pattern originator does not by virtue of thinking of ways to use his own property homestead unowned scarce resources around the world, and he certainly does not homestead scarce resoures already owned by others.

Peter Surda June 28, 2011 at 3:29 am

Kid Salami,

why is this OK for land, and not IP?

Just like sweatervest said, I cannot see the common factor, the “that” that the question refers to. I clearly demonstrated that easements do not bind third parties that are neither violating someone’s rights, nor contractual relationships. So the question is illogical, like “have you stopped beating your wife”.

Just for clarification, I don’t see why there should be easements on land and not on movable property. Certainly, they would be more difficult to work with, but that’s an empirical rather than legal question.

If, hypothetically, there was an easement on a drive and the assumed owner did not know about it, it would mean that he’s been defrauded and does not actually own the drive. Upon learning about this, he should return the drive to its actual owner and demand restitution from the fraudulent “seller”. Whether he acts in opposition to the easement (e.g. copies a CD) prior to the knowledge of the easement is irrelevant to the question of his liabilities. If he acts in opposition to the easement after the knowledge, he is violating rights the same way as if he never obtained the hard drive in the first place.

There is no equivalent example in the case of IP. I hope I made it abundantly clear that easements cannot bind third parties without their consent, or without them violating other peoples’ rights.

Wildberry,

First, if you know how to rephrase the question, you must already understand it.

Correct, and this is only after a long time of following Kid Salami’s posts. I did not understand it at the beginning.

Second, you just confirmed your understanding of how IP and negitive servitudes operate in common.

On the contrary, I explained that they lack a common factor. Your confused lies are a disgrace to humanity.

Kid Salami June 28, 2011 at 4:11 am

“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. “

Ok. I note the use of the phrase “particular object”.

“This is all well and good but does not get you IP because IP prohibits D from using his own property to (say) make his own object similar in design to A’s/B’s object even though D never bought the object or even touched it.”

This would apply to an argument for patents – I have no argument for patents (and nor in fact for the operation of copyright as it exists today). The system I suggest could (not would, could) feasibly evolve on a free market is a registry in which people register documents that they have released only with the contractual stipulation that their use is restricted eg. copies are not allowed and it must stay under lock and key in one place or something.

So someone found with this document must either: obey the terms they agreed to when they bought it and not make copies; or not know the terms, because they were defrauded; or pretend not to know the terms and that they were defrauded, when in fact they were part of a conspiracy to get round the “no copying” rule.

“It is sufficient that he somehow *learns about* the nature of B’s object–maybe A sells a million of them and D sees it on the shelf at a store, and thinks it’s a clever design so he makes his own simlar object. If there is an “easement” on the objects A is selling, so what? All that could do is limit how D could use the object *if he bought it*.”

Yes, I agree. “If” he bought it. If he doesn’t buy it, he has no such restrictions. This is not relevant to my scenario.

“How can A’s and B’s private agreement prevent D from using knowledge he has obtained by interacting with others in the world? This is the gaping hole in your pathetic argument, and you seek to cover this deficiency up with your “easement” deflections and distractions.”

To me, it can’t. So this is not a gaping hole in my pathetic argument because it is not in fact part of it at all.

***

No’one it seems is going to directly give me a satisfactory answer the question of the difference between land and other items (Peter came close when he said it is not, in practice, a problem, which is of course true – but the next question is, exactly why? and what are the implications elsewhere for this?), so I’ll get the ball rolling.

One possible answer is that it comes down to the use of the phrase “particular object” above. Because, in the case of an engineering drawing, you can make a copy onto your own paper and ink, then there is now some new object to which the original agreement does not apply. The original agreement might well “run with the drawing” but, as this is different paper and ink, it does not run with this particular drawing.

The fact that the a check with the drawing registry (analogous to the visit to a land registry) will show that this copy is in fact illegitimate seems not to be relevant. This is the party line right?

If someone is sold land and they are not made aware of the restriction on its use by the seller, then tough – they have to allow it as they should have done their due diligence at the land registry or whatever. That is, the defrauded holder of the land pays the price.

Now in my free-market copyright system:

If A is sold an engineering drawing and they are not made aware of the restriction on its use (no copies) by the seller, then your official view is that
- If it is the same physical drawing, the same “physical object”, then tough, they have to obey this restriction. Then A, the defrauded holder of the drawing, pays the price and agrees not to copy it even though these weren’t the terms on which he purchased it.
- If it is a copy of the original drawing (that the seller made in breach of his contract with the author) then in this case, the restriction applies to the physical drawing and not to this copy, and so A can do as he pleases. The author of the drawing pays the price in that he now has to sue the person to whom he sold the drawing and who breached the contract.

Do I have this right?

Peter Surda June 28, 2011 at 4:54 am

Kid Salami,

(I can’t speak for sweatervest, so I’ll say what I think):

If it is the same physical drawing, the same “physical object”, then tough, they have to obey this restriction.

Let’s clarify this a bit, and instead of using the terms “have to obey this restriction”, investigate what the consequence of violation would be. As I elaborated earlier, the consequence of violations cause no liability on A if he is not aware of the restriction. The liability is “shifted” to the “seller” (i.e. defrauder). If A is aware of such a restriction and violates it, then the fact that he thought he owned the object becomes irrelevant, and he’s liable the same way just like in any other case when you violate someone else’s property.

If it is a copy of the original drawing…

I think this is unnecessary complication. It’s all about property rights: who does the copy belong to, who agreed to what restriction, and who sold what to whom. A copy is no different than any other random object belonging to some arbitrary party. The fact that it is causally related to the author’s original has no effect on the rights.

Stephan Kinsella June 28, 2011 at 8:05 am

Peter:

Just for clarification, I don’t see why there should be easements on land and not on movable property. Certainly, they would be more difficult to work with, but that’s an empirical rather than legal question.

I think I agree. But really an easement just means that for a given resource, it’s co-owned: two people have control rights over it. I think you can view this as a contractual arrangement, or a property allocation. For example if I own a car and loan it to you for a day, then you do have a type of ownership right in the car–the right to use it. IT’s just very limited and temporary. You could say that while you are driving the car around, there is an easement on it–restrictiosn on what you can do wiht it. Etc.

Now I think there may be some differences for practical reasons. If A and B co-own blackacre–say, A has a usufruct (he can live on it) but B is the naked owner and also has various negative servitudes on it (e.g., A may not have a fireworks display because it may frighten the animals on B’s nearby farm), then because this is immovable, these co-ownership facts (whether you call it contract, easement, etc.) can be recorded and known publicly. So then if A invites C and gives him “permission” to have a fireworks display, C knows that he is using B’s property without B’s permission. that is, he knows A doesn’t have the right to grant this permission.

Now it’s simply harder to attribute to a third party C knowledge of co-owneship rules between A and B. TAke the car loan case. B loans his car to A for a day. B says to A that ONLY A may drive the car. Later A permits C to drive it. Now if C knows it’s B’s car, and knows B does not want C driving it, it’s arguably a type of trespass by C. But waht if C does not know? He thinks A owns it, and A has given him permission. It’s not clear that C is committing a tort here; at least, not the same type. In fact it may be more B’s than C’s fault, that C did not know—B, by his arrangement with A, helped create a situation where C would be deceived. And so on. So because of this difference, “easements” on movables may have different results or be more difficult.

Make sense?

Stephan Kinsella June 28, 2011 at 8:13 am

Kid:

The system I suggest could (not would, could) feasibly evolve on a free market is a registry in which people register documents that they have released only with the contractual stipulation that their use is restricted eg. copies are not allowed and it must stay under lock and key in one place or something.

So someone found with this document must either: obey the terms they agreed to when they bought it and not make copies; or not know the terms, because they were defrauded; or pretend not to know the terms and that they were defrauded, when in fact they were part of a conspiracy to get round the “no copying” rule.

The problem is, even if this works, it only binds particular people by virtue of their use of a particular scarce resource owned or limited by the producer. If C finds this document lets assume he is bound and may not read it, learn from it, copy it, or resell it, or even show it to others. All he can do is drop it and leave it where he found it, closing his eyes and pretending to forget the color of the paper, the font, the title, or even teh fact-that it exists. And IF he tells his neighbor about it he now owes $75 million damages to this remote content creator. Fine. But the neighbor now knows things. He never used the document. He never even saw it. And now the neighbor makes a movie, writes a book or sequel, or otherwise uses an spreads the information. He and all the third parties he reveals the information to are not bound. This is why you cannot recreate IP with contract.

“It is sufficient that he somehow *learns about* the nature of B’s object–maybe A sells a million of them and D sees it on the shelf at a store, and thinks it’s a clever design so he makes his own simlar object. If there is an “easement” on the objects A is selling, so what? All that could do is limit how D could use the object *if he bought it*.”

Yes, I agree. “If” he bought it. If he doesn’t buy it, he has no such restrictions. This is not relevant to my scenario.

It is very relevant because there can be millions of people who learn the information and who have no contractual relationship with A.

“How can A’s and B’s private agreement prevent D from using knowledge he has obtained by interacting with others in the world? This is the gaping hole in your pathetic argument, and you seek to cover this deficiency up with your “easement” deflections and distractions.”

To me, it can’t. So this is not a gaping hole in my pathetic argument because it is not in fact part of it at all.

Good, then it seems we agree. You have conceded that there is no way to use “eaesments” or “contract” to bind the world at large to IP controls. THanks. Finally. Now help us work on Wildberry.

Wildberry June 27, 2011 at 11:28 am

@sweatervest June 27, 2011 at 10:45 am

Wildberry is so poor at grasping my arguments he thought my explanation that there is a reality out there that isn’t created by human minds was me claiming to be god-like.

You must be right. Explain to me again how you know there is a “reality out there” that isn’t created by human minds? Go slow so I can grasp it this time.

sweatervest June 27, 2011 at 12:26 pm

Haha I knew it. You’re just a philosophical nihilist, and now you’ve descended into solipsism.

Before presenting the several thousand year old refutation of solipsism, I will assume for the moment that reality is a mental construct. If that is true, then everything you have said here is pointless. Nothing you can ever say can be interpreted as being “true” because true means reflected by the reality independent of the minds experiencing it. If everything were in all our heads, then your whole argument about IP being legitimate is only in your head and I shouldn’t care in the least. All I should care about is that IP is illegitimate in my own head. Also, you would have no basis to care that I disagree with you. There is no reality, there is no truth, it’s all just our imaginations, which means your opinion about IP is just your imagination and it doesn’t concern me in the slightest. If you really believed that there is no such thing as reality and truth as a description of that reality you wouldn’t have ever come onto a forum to claim that what I am saying is factually incorrect (i.e. there is a reality that is described by something different than what I say) or to present anything you claim as factually correct. You wouldn’t even have a means to say that I am wrong. To be wrong means to mischaracterize reality, but if there is no such thing as reality how could anyone ever be wrong about anything? How could ancap be wrong? It’s all in our heads!

But, as should be obvious by this point, the claim that there is no reality beyond what we make up in ours heads is self-contradictory. To make any sort of claim is to work within a framework of communication that presumes a common existence. That you are using words at all to communicate something means that the words must mean something both for you and me. Their meaning must apply to both of our experiences and thus presupposes a common thing in which all of us exist. Otherwise even if words meant something to you they wouldn’t carry their meaning from you to me. That you are even attempting to convey to me that you are a solipsist means you don’t even seriously believe it.

To say that there is no reality out there is to claim that such a proposition is factually true, which requires that there be a factual reality to speak of. If everything is in our heads, then your claim that everything is in our heads is also just in your head and you fail to convey what you mean to convey, which is that the existence of reality is apparently not reflected in reality. Solipsism is immediately self-defeating.

But I am glad you admitted to everyone here that you don’t even believe in truth at all and yet somehow are able to claim that anything anyone says is either right or wrong. Apparently you have no basis to say my property rights theory is wrong, because there is no actual reality to be mis-described by my theory.

Also, I’m confused as to why you haven’t simply wished yourself into the best existence you can imagine.

Wildberry June 27, 2011 at 1:04 pm

@sweatervest June 27, 2011 at 10:45 am

OK, take a breath, listen to some punk rock or whatever you prefer, and come back later.

In the meantime here is a gift:

This is from your Hoppe, page 389:

Private-property ownership, as the result of acts of original appropriation,production, or exchange from prior to later owner, implies
the owner’s right to exclusive jurisdiction regarding his property;
and
no private property owner can possibly surrender his right to ultimate
jurisdiction over and physical defense of his property to someone
else unless he sold or otherwise transferred his property (in
which case someone else would have exclusive jurisdiction over it).
To be sure, every private property owner may partake of the advantages
of the division of labor and seek more or better protection of
his property through cooperation with other owners and their property.
That is, every property owner may buy from, sell to, or otherwise
contract with anyone else concerning more or better property
protection, and every property owner may at any time unilaterally
discontinue any such cooperation with others or change his respective
affiliations. Hence, in order to meet the demand for protection,
it would be rightfully possible and economically likely that specialized
individuals and agencies would arise to provide protection,
insurance, and arbitration services for a fee to voluntarily paying
clients.

I agree with the highlighted text, and disagree with everything after that.

As an aside, I do not believe the Crusoe device, which both Rothbard and Hoppe depend upon to develop their natural rights theories, is useful. The concept of “man alone on a desert island” has never existed as the beginning of social coperation. Every man starts out as a child; that fact is universal. Therfore “man alone” cannot, and can never exist. Therefore homesteading is an inadequate explanation for how and why property rights arise in society.

On the contrary, property is a human device, and is asserted an defended on the basis of ethics, economics and law. They are adopted by consensus of free humans acting in their best self-interest.

Sweet dreams.

sweatervest June 27, 2011 at 1:39 pm

“OK, take a breath, listen to some punk rock or whatever you prefer, and come back later.”

More trolling.

“They are adopted by consensus of free humans acting in their best self-interest.”

This is seriously the stupidest thing I have ever heard. If there is a consensus then there is no problem. Ethics is about how to resolve conflicts, and you claim that ethics is only defined where there are no conflicts! If everyone agreed on what to do there would never be an conflicts and there would be no need to debate over what property is. For the love of god all we have done here is *disagree*. The existence of disagreement is the only thing that makes ethics even meaningful, much less worth discussing.

If there was a consensus on how to behave then not only would ethics have never been discussed in the first place, we wouldn’t be here arguing about what is justifiable and what is not. Ethics is not about what people agree on. It is literally about what people disagree on and which one of them is justified and which one is not.

“As an aside, I do not believe the Crusoe device, which both Rothbard and Hoppe depend upon to develop their natural rights theories”

Wrong, they do not depend on the Crusoe device. They study the Crusoe device to gain some insight but that is not the foundation of the theory nor is it impossible to construct the theory without ever referencing the Crusoe device. Besides, this same objection would have to be launched against the entire Austrian framework assembled by Mises because it makes use of the evenly rotating economy, an idealized mental construct that never actually exists. Not to mention physics for making use of perfectly straight lines to define displacements or geometric points to define mass distributions.

nate-m June 28, 2011 at 5:39 am

As an aside, I do not believe the Crusoe device, which both Rothbard and Hoppe depend upon to develop their natural rights theories, is useful. The concept of “man alone on a desert island” has never existed as the beginning of social coperation. Every man starts out as a child; that fact is universal. Therfore “man alone” cannot, and can never exist. Therefore homesteading is an inadequate explanation for how and why property rights arise in society.

On the contrary, property is a human device, and is asserted an defended on the basis of ethics, economics and law. They are adopted by consensus of free humans acting in their best self-interest.

Sweet dreams.

So since you do not believe in a imaginary scenario used to illustrate basic concepts on private property rights, and rights are created by nothing more then consensus, then IP is valid.

That’s logic!

Wildberry June 27, 2011 at 1:33 pm

FYI, I found a FREE reference for you here:

http://osaka.law.miami.edu/~schnably/EasementsandCovenantsRunningwiththeLand.pdf

Here is some useful information regarding what is requried for a servitude to run with the land. FYI, Peter’s analysis is wrong. The servitude is enforceable against the person who has no notice, as long as the servitude “touches and concerns” the land.

He would have, as Kid points out, a case against the seller who failed to give notice, and the damages may be recission of the sale, or an adustment on the price for what the buyer would have paid had he had notice.

Bottom line, the servitude is undisturbed and runs with the land, or the hard drive in Kid’s example.

sweatervest June 27, 2011 at 1:44 pm

No you’re wrong, because the servitude is a condition of use granted through contracts. The servitude is not what prevents third parties from making other uses of that land because third parties are neither owners nor contractors with the owner of the land.

The servitude is not what stops third parties from using the land. It is the simple fact that they don’t own the land and cannot do *anything* with it.

Servitudes that run with the land despite what the owner of the land wants are unjustifiable.

Wildberry June 27, 2011 at 2:37 pm

Sweatervest,

You are certainly confident of your grasp of property law…

A condition granted through contracts is a covenant, and requires privity to run with the land. You are ill-equipped to distinguish between a covenant and servitude. Check the link I provided you to discover the difference.

Peter Surda June 28, 2011 at 3:43 am

Wildberry,

The servitude is enforceable against the person who has no notice, as long as the servitude “touches and concerns” the land.

You are misrepresenting the problem. The situation you are referring to does not constitute a person being forbidden from using a property he bought as he wants. Rather, the person never obtains the property rights in the first place. 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.

Let’s make an analogy. B has a company. To Y, he explains that his company is selling apples. In reality, the company is selling rocks. Y buys the company with the understanding that it’s an apple selling company, and B knows Y has no interest in rocks. Subsequently, it turns out that it’s not an apple selling company. B has no interest in such a company, nor did he agree to buy it. Therefore, the legal conclusion is that he never bought the company in the fist place. The sale was a fraud, the seller misrepresented the defining characteristics of the object being sold. Whether the company is in some contractual relationship with other people, such as A or X is completely irrelevant to the issue. If the contracts are violated, it is up to B, the actual owner, rather than Y, the defraudee, to assume the liabilities.

Wildberry June 27, 2011 at 7:07 pm

@Stephan Kinsella June 27, 2011 at 3:29 pm

I’m astonished you and Kid S. keep pontificating here without knowing much about the legal things you are using to make your “arguments”; not that you have to be a lawyer to understand this, but you need to keep things clear and be honest in debate. You are not.

OK, Mr. Kinsella, I am appropriately chastised and humbled. Onwards…

Let’s separate some things. We IP opponents (at least I) am pointing out that the problem with IP is that it assigns to third parties partial ownership/control rights over how others use their property–a veto right. I have made this point for over 10 years.

I am aware. But unlike good wine, arguments don’t necessarily get better with age.

I have challenged the appropriateness of the “veto” concept you are employing here. I think this misstates what the a priori status of property right are and how they operate. I explained this here: http://blog.mises.org/17398/intellectual-property-rights-as-negative-servitudes/comment-page-1/#comment-789502

the problem with IP is that it gives third parties the right to control others’ property–the veto right.

This is the mother-load assumption which allows you to come to such a strange conclusion.

You are saying that other’s have unlimited property rights , and AFTER THE FACT, IP comes along and establishes a veto power against the other’s rights? What a bizarre way of trying to look at property rights.

That is equivalent to saying that you have a bat, and that because you didn’t voluntarily agree to limit the use of your bat, you have the unlimited rights of use to bash my head. Unless I have the power to veto your use, you would otherwise be free to use it however you wish, i.e. to bash my head.

As I already explained above, property rights are not a “veto power”. They are a LIMITED right of exclusive use and possession. Without any prior agreement, contract, or any other device, when you acquire a bat, your rights are already, automatically limited to uses which do not violate the rights of others. That is the condition under which you agree to acquire the bat.

The correct way of describing property rights is they secure an unlimited and exclusive right of use to the extent that use does not infringe upon the rights of others. NAP in a nutshell.

Continuing onward…Kinsealla says:

I am now saying that this veto right [I object] may be legally classified as a legal servitude: it treats property owners as servient estate owners, and grants a veto-negative servitude right to the IP owner. NOw that is the legal reality.

I disagree, and object to your use and/or understanding of the legal theory here. It is flawed. I explain here:

Second, what “estate” are you referring to here? You seem to be implying that the “estate” is the “paper and ink” already owned by the second party, which is not burdened by a servitude. This is correct in the limited sense that all property rights are unlimited to the extent that their use does not infringe on the rights of others. That is an inherent limitation of all property rights.

But the burdened property in this case is the work (fixed in tangible medium). The work is what carries the condition of limited use. That work, except by the original author, must be acquired through a distribution channel which leads, causally, to the original. No one is confused as to whether they are or are not the author. No one is confused about whether they are acquiring a work of another.

Each duplication of that original work is burdened with a limitation of use (and non-limited uses; i.e. Fair Use Doctrine), which any person who voluntarily acquires a copy, does [so] with notice of this burden of limited use.

So, all that has been accomplished here is to offer an analogy to the operation of property rights that are equally valid for both real property and IP

So if you disagree with my analysis, pull out your best legal arguments and explain it.

You go on to build upon your prior two errors:

HIghlighting this nature of IP rights helps to show why they are legitimate: because a negative servitude is legitimate only if it’s contractually granted by the servient estate owner. But the negative servitudes created by IP law are not negotiated;

Once created, a servitude is nothing like a contractual agreement, since it is in the realm of property law. What you are calling “contractually granted” is merely an agreement by the owner of an estate to accept a burden of limited use on his land, and to record this in conformance with property laws regarding recording, etc. In any case, the point of a servitude is precisely that it “runs with the land” and requires NO PRIVITY for enforcement.

If you want to assume the necessity for privity as a condition for enforcement, you would have to assume the device of “COVENANT”. A covenant does not run with the land except between parties to the covenant. That is the nature of a condominium HOA agreement, for example, and entirely different concept than the one being discussed here.

I will skip a discussion as to whether laws are negotiated, which I believe they are, before enactment.

In any case, you can see how your confusion over what is the “subservient” estate (you actually mean “burdened” estate, because in servitude there is only the one estate that is burdened, while easements involve two estates, the dominant and subservient).

You continue:

they amount to taking property from the servient estate owner and transferring it to IP owners. That is why it is illegitimate, and a taking.

To repeat, this is an incorrect statement concerning the operation of servitudes.

No property is taken. The person who owns the property, still owns it before and after the creation of a servitude; A owns Applewood, and creates a servitude burdening his own estate, with a limitation of use; he may not build a hotel on his property. Applewood is the burdened estate.

A sells to B, and gives notice of the burden of servitude. B offers to sell to C. C has the choice to 1) acquire Beachwood with the servitude or 2) not acquire Beachwood. C decides to acquire Beachwood. C assumes the burden of the servitude, which “runs with the land.”

A did not take C’s property right to build hotels, because C never have possession of that right. Applewood did not come with a right to build hotels. If C tries to build one anyway, use of coercion is not aggression, since he is attempting to defend a right he does not have.

The analogy to copyrights is this: A writes a book; Deadwood. It is his property. He creates a servitude on his property, Deadwood, limiting its use, no future owner may copy the book. Deadwood is the “burdened estate”. He sells it to B with notice of the limitation on use. B agrees, and B sells the book to C. C is bound even though he has not made an agreement with A. The burden “runs with the book”. C’s property was not taken, because he did not acquire the right to copy Deadwood. Using coercion to prevent him from making copies anyway is not aggression, because he is defending a right he does not have.

Sometimes you IP advocates say “well all property rights are limited, so what’s the problem?” By this you mean something like, you can’t use your gun to shoot an innocent person, so their rights in their body limit your property rights in your gun.

Do you disagree with this?

“Therefore” the IP opponent should not object to the limitations IP rights place on property.

This only makes the point that rights are not unlimited, but are circumscribed by the rights of others. This limitation of use does not require a servitude, contract or any other device being discussed here. Do you disagree with this?

BUt this is fallacious for two reasons. First, your property in your body restricts me from killing you, but this is a restriction on my action, not on my property rights. I am prohibited from killing you with ANY means, whether owned or not. And the limitation is a *result of* property rights in scarce resources; it makes no sense to say property rights are limited because there are inviolable property rights!

This is a tautology. “Restrictions on property rights restrict your rights to use your property.”

So if we refer to your bat, your unlimited property rights to exclusive use of the bat is limited to non-murderous acts. If we refer to your hammer, etc. The rights of others inherently limits your “unlimited” rights of ownership; to exclusive use and possession.

Actually, I can see your point in the case of murder being prohibited against any act by any means, owned or not. But ultimately you own yourself, and murder is a volitional act, so in this way, it is meaningless to try to distinguish between “use right” and “action”. Are you limited in your use of your body, or are your actions limited to certain uses? It is a distinction without a difference.

But we are talking about the specific case where something is owned, which is presumed to include unlimited and exclusive rights of use. In theory, unlimited use is limited only by the laws of nature, if we assume the owner is on a desert island. As soon as another person shows up, these unlimited rights become limited to those uses which do not infringe on the rights of others. That is the NAP principle. Even the right to life is limited by the rights of others (with some extreme exceptions).

Second, even if it is sometimes legitimate to limit others actions (or even their property rights), that does not mean that just any limitation is legitimate.

This is incorrect. No one is saying that “just any limitation is legitimate”. There are still rules of ethics and morals, etc. We are capable of determining a hierarchy of rights. My private property rights trump your rights to use your feet to trespass. This is not rocket science except in the most difficult distinctions, like perhaps IP.

By your reasoning you could say that a law granting to adult men the right to rape any single female cannot be objected to. After all, it’s just a limitation on the women’s rights to their bodies; but whoever said property rights in our bodies are absolute are unlimited, eh? After all you can’t use your body to murder someone, so property in our bodies is not unlimited.

I think I just said that. I’m not reading ahead. We both know this is false and we both know why. On the one hand, it is true that if we secure property rights in a thing, we pretty much know how it operates by virtue of how property rights operate in general. That is a benefit. However, just declaring that X is property does not satisfy the ethical question, otherwise we could not have opposed slavery, which we did. As long as slavery existed, it operated under the principles of property rights. This says nothing about the justifiability of those rights. That must come later, as an answer to the question, “is it justifiable to secure property rights in X”. If X is a human, no. If X is a car, yes. If X is an “original work or authorship” I say yes and you say no.

Therefore the women cannot complain that the rape law limits their property rights in their bodies, right?

I think we agree she can complain, justifiably.

This is obviously ridiculous reasoning.

Right.

The reason actions are limited is *because of* property rights; you may engage in whatever actions you like, so long as they do not trespass on others’ property rights in scarce resources. Violating others’ rights *is* a jsutification to limit your own rights. But you can’t just say that because there are sometimes limitations, that any limitation is justified.

See, I’m with you right up to there, then you go all squirrely.

And in IP property rights are limited–nay, taken away (as the negative servitude exmaple shows)–for no good reason at all. The owner turned into a servient estate owner by IP has not agreed to the negative servitude, and he has not trespassed on the property of the IP owner, so there is no justification for this limitation.

Backwards. The owner of IP creates a servitude on HIS OWN PROPERTY, and then offers it for sale with a specified limitation of use. The buyer takes possession only on condition of that servitude. If an owner actually OWNS something, then he can create a servitude. That does not limit a right in some other property. You continually make your argument by turning the facts upside down.

Now, that is my argument.

Do you think I have misunderstood your argument? Would you kindly demonstrate whether you understand mine? By what you have written, you do not. Please address the points of disagreement I’ve raised. That would be interesting.

You guys have some separate argument also involving the word “easement” and you had the temerity to try to conflate your shoddy argument with mine above, even though they have nothing to do with each other.

I agree with this last part, so can we drop the subject, temerity and all?

In the above I am simply classifying the property limitations imposed on innocent owners by IP as “negative servitudes” to help make it clear how they are property rights takings or violations. In your argument, you are trying to extend the IP by contract idea. You are saying that the seller of a physical object can impose an easement on it so that the buyer takes it subject to an easement (or perhaps he only has an easement)–in either case the buyer does not have full rights in the object. This is nothing more than the old argument that you can create IP by contract, and you are dressing it up by calling it an easement.

This is wrong. Contracts require privity. You argue that contracts cannot recreate IP, even if the terms between a contract and the statutes were identical. The reason is that contracts require privity, and so do not bind third parties. I agree with the privity part.

IP operates as a property right. Property rights do not depend upon privity, so you may abandon your criticisms based on objecting to the use of contracts. I am not making a contracts case, OK?

Your argument here seems to be that if A sells an object to B, burdened by an easement,[servitude; we must be legally precise] 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.

No offense, but that is a shoddy and inaccurate restatement of my argument (Kid can speak more than adequately for himself). You get off track when you try to say that a servitude [forgive me] affects ownership by creating something called “co-ownership”. Tenants in common, joint tenancy, what are you referring to? Title follows ownership. A servitude does not disturb title to property. If A sells to B who sells to C, C owns the property. That ownership is conditioned by a limitation on use. However, C’s title is fully alienable; C does not need permission from A or B or X to transfer what he owns to anther. So it is inaccurate to define the operation of a servitude as creating “co-ownership” rights.

This is all well and good but does not get you IP because IP prohibits D from using his own property to (say) make his own object similar in design to A’s/B’s object even though D never bought the object or even touched it.

No. IP provides the owner of private property the ability to secure his private property rights of ownership, which includes the alienability of all rights he possesses. He may convey his property with limitations of use by conveying his property with a “servitude” which limits future uses of the conveyee.

It is sufficient that he somehow *learns about* the nature of B’s object–maybe A sells a million of them and D sees it on the shelf at a store, and thinks it’s a clever design so he makes his own simlar object.

Note that even in your illustration of what you think is being argued here, you acknowledge that D “sees it” and “makes his own similar object”. The original is the means for making the copy.

What if the object had a big red sign on it which read; “This object is burdened with a servitude limiting the use that may be made of the image hereon.” Now you may argue that D’s use as you describe fits within the meaning of fair use, but you cannot argue that D is unaware that the owner of property (D knows he does not own it, he only sees it) is asserting rights. You may argue that it is “wrong” to so limit uses of private property, but what you cannot deny is that IF that object is private property, there is nothing unusual about the operation of such a limitation in property rules.

If there is an “easement” on the objects A is selling, so what? All that could do is limit how D could use the object *if he bought it*. How can A’s and B’s private agreement prevent D from using knowledge he has obtained by interacting with others in the world? This is the gaping hole in your pathetic argument, and you seek to cover this deficiency up with your “easement” deflections and distractions.

To create this “gapping hole” in the argument, you had to assume a completely different premise, one that is not being raised here. We ARE talking about the transfer of property title with a limitation of use, not the exchange of “information” that is used in a “similar” way. Stick with the program.

There is another easement argument, one made by Hoppe et al.: the idea that certain limited uses of a scarce resource short of full homesteading may be viewed as a limited or partial homesteading–the homesteading of some limited use right, or easement–e.g., the right to travel across a parcel to get to the river. So if such an easement is established by use then someone who homesteads the tract has to homestead it subject to that use-easement. This is just standard homesteading theory and cannot justify IP at all, since the idea-pattern originator does not by virtue of thinking of ways to use his own property homestead unowned scarce resources around the world, and he certainly does not homestead scarce resoures already owned by others.

You bounce around more than a jumping bean. This is not relevant to our present discussion. You are talking here of what would be the equivalent of a “reader” acquiring some ownership rights by virtue of “using” the book. No one that I’m aware of is raising that issue.

Stephan Kinsella June 27, 2011 at 9:31 pm

I have challenged the appropriateness of the “veto” concept you are employing here. I think this misstates what the a priori status of property right are and how they operate.

A copyright or patent holder can in fact veto others’ uses of their own property. There is no reason to object to describing this as a veto.

You are saying that other’s have unlimited property rights , and AFTER THE FACT, IP comes along and establishes a veto power against the other’s rights? What a bizarre way of trying to look at property rights.

That is equivalent to saying that you have a bat, and that because you didn’t voluntarily agree to limit the use of your bat, you have the unlimited rights of use to bash my head. Unless I have the power to veto your use, you would otherwise be free to use it however you wish, i.e. to bash my head.

And… you make the exact argument I have already predicted and countered. Sad.

As I already explained above, property rights are not a “veto power”. They are a LIMITED right of exclusive use and possession.

Right, that is why IP rights are invalid.

Without any prior agreement, contract, or any other device, when you acquire a bat, your rights are already, automatically limited to uses which do not violate the rights of others.

No. The rights are not limited. It’s actions that are limited. Not property rights.

Once created, a servitude is nothing like a contractual agreement, since it is in the realm of property law.

This is irrelevant as it does not help get you to third parties. Consider: B and A are neighbors. B gets A to agree to an easement (negative servitude) that prohibits A from disclosing that there is oil under his land. If A does this, then C and D can raise the price they will charge to B who wants to buy them out at a cheap price. So A is supposed to drill for oil only at night. Not during the day.

Now, contrary to the easement, A drills for oil on a bright sunny day. Noticing this, C and D realize there is oil here and they now refuse to sell at a cheap price to B.

Now, A may be liable to B. He may have breached the easement/contract. But are C and D to be prohibited from using information they now have? Did they breach the easement? No.

The analogy to copyrights is this: A writes a book; Deadwood. It is his property. He creates a servitude on his property, Deadwood, limiting its use, no future owner may copy the book. Deadwood is the “burdened estate”. He sells it to B with notice of the limitation on use. B agrees, and B sells the book to C. C is bound even though he has not made an agreement with A.

Well there is a reason the law applies servitudes and easements to real property: then third parties can be on notice. Not so easy for movable objects. It is not obvious that C is “bound”. In any case, even if A finds C has his book and wants it back, fine, but that doesn’t mean C can’t use information he discovered in the meantime. And it surely doesn’t mean that D and E, whom C told the information to, can’t use the information.

The burden “runs with the book”.

But it does not run with information.

Horst Muhlmann June 23, 2011 at 2:59 pm

OT, but IP question for Stephan:

Yesterday someone posted this article to slashdot.

Two people (I was one of them) asked, “If you got some songs off of the original Napster, that was over 10 years ago. When does the Statute of Limitations come into play?” No one from the legal profession answered, and the common lay answer was “Since the suits are civil, there is no Statute of Limitations.”

That didn’t sound correct to me. When would the Statute of Limitations come into play?

Stephan Kinsella June 23, 2011 at 3:41 pm

There are statutes of limitation (called liberative prescription in the civil law) for civil suits too, of course. You can only sue for contract breach after a certain time, say.

However, I am actually not sure what the statute of limitations is for copyright breach civil suits. I can ask a lawyer list I’m on.

Virginia Llorca June 23, 2011 at 7:50 pm

Why do you think the law libraries are so full of books? The Supremes have reversed themselves.
It may not be possible to codify some things. Maybe Hammurabi made a huge mistake. When an acquaintance was getting a divorce and it became ridiculously contentious, her lawyer said, “You didn’t hear this from me, but sometimes it is better to just shoot them.” I hope Illinois folds under the concealed carry law and allows it. Oh, wait a minute. Let’s go back and rewatch Rango. Supposedly it was ALL boiled down there.

Stephan Kinsella June 23, 2011 at 8:13 pm

A patent lawyer friend said he thinks it’s 3 years, but lots of exceptions. “See 17 USC section 507 and also see Auscape In’t'l v. National Geographic Soc’y, 1 (SDNY Aug. 12, 2004), which discusses the discovery rule as the prevailing approach.”

I am not sure.

Horst Muhlmann June 24, 2011 at 9:14 am

Thanks a bunch.

Michael Barnett June 23, 2011 at 6:12 pm

I’ve been saying the same thing without all the legalese.

anon June 24, 2011 at 4:34 am

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

Using this definition for IP is begging the question because the dispute is about ownership. So when you claim an IP owner is imposing something on the “owner”, the IP owner would then claim he is the real owner.

When you “buy” a novel you don’t actually gain ownership of it. Not even the physical aspects. Currently seller of the novel doesn’t make an issue of the physical part of the novel because that is actually a very small part of the whole exchange. The physical is only a medium.

If we lived in libertarian society where the rule of law was only based on property rights, the whole IP exchanges would be easily reconfigured so that, whatever you are used to buying today, you would actually had to rent it with certain conditions. And in that society buying the thing would mean buying all the rights of it.

In that society no author, none that want to keep his property rights, would sell his novels, but rent it out including the physical paper and ink and bindings.

Stephan Kinsella June 24, 2011 at 6:42 am

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

Using this definition for IP is begging the question because the dispute is about ownership. So when you claim an IP owner is imposing something on the “owner”, the IP owner would then claim he is the real owner.

I don’t think it’s begging the question at all. It’s just describing what IP laws do. I realize that this may be uncomfortable for IP advocates. First, people I am discussing with usually agree with me and with other libertarians that people *do* have property rights in their owned scarce resources. Second, consider a law enacted tomorrow that says “No adult female may have sex unless her eldest brother gives her permission.” Now to me this is making her partially his slave; it’s giving him a veto right over how she uses her own body. but by your reasoning, this objection is question begging.

If we lived in libertarian society where the rule of law was only based on property rights, the whole IP exchanges would be easily reconfigured so that, whatever you are used to buying today, you would actually had to rent it with certain conditions. And in that society buying the thing would mean buying all the rights of it.

I do not think buyers would accept these conditions, but even if they did, so what? it would still not bind third parties on what information they use to guide their own actions.

In that society no author, none that want to keep his property rights, would sell his novels, but rent it out including the physical paper and ink and bindings.

Nonsense. Such authors would have no market becuase no one would accept these stupid terms. Furthermore, this does not bind third parties anyway.

Wildberry June 24, 2011 at 1:13 pm

@Stephan Kinsella June 24, 2011 at 6:42 am

Second, consider a law enacted tomorrow that says “No adult female may have sex unless her eldest brother gives her permission.” Now to me this is making her partially his slave; it’s giving him a veto right over how she uses her own body. but by your reasoning, this objection is question begging.

A principle which violates a higher principle is invalid and illegitimate. A law which violates other laws is likewise illegitimate.

It is question begging. It begs the question of who has the rights to have sex. You are beggin the question by assuming that a law can assign this right to the brother. Since the brother does not have the right to her choice (assuming capacity and majority age), no law can give it to him. That is the objection. The brother cannot take rights that are not his to take, and therefore he likewise cannot give permission to someone else to exercise their rights.

As I explain below, a possessor of a book cannot take or relinquish rights he never possessed. The issue is the proper assignment of property rights. You cannot assume that in your analysis without begging the question.

sweatervest June 24, 2011 at 1:17 pm

“A principle which violates a higher principle is invalid and illegitimate”

IP violates the higher principle of cooperation over violence. Every example of IP enforcement is violently taking someone’s property rights away by no action of his own.

sweatervest June 24, 2011 at 1:20 pm

“You cannot assume that in your analysis without begging the question.”

This is a hypocrisy. I have explained the basis of my position and assignment of property rights. You have not at all. Claiming they are a “human device” certainly does not imply that IP should be a part of that human device.

You are the one begging the question. Kinsella has told you that over and over, I have told you that over and over. You assume that there is some reason for IP to exist and show us what that entails. You beg the question of what use IP serves at all, or you repeat claims you have been making for months while pretending that no one has launched refutations of those claims. You don’t want to advance this debate, you want to keep it stuck in the same tiresome place: property rights are a human device, that has nothing to do with justifying IP but whatever, and IP is necessary for creative production even though it’s not and actually hinders creative production, and creative authors would not get paid for their work without IP even though I have explained in detail how they would.

Wildberry June 24, 2011 at 2:43 pm

Willdberry said:

@ sweatervest June 24, 2011 at 1:07 pm

With all due respect, it is hard for me to take you seriously.

sweatervest June 27, 2011 at 12:32 pm

You’re a charlatan. You don’t argue and you pretend that you have. You are so dishonest it really blows my mind.

Stephan Kinsella June 26, 2011 at 1:12 am
Second, consider a law enacted tomorrow that says “No adult female may have sex unless her eldest brother gives her permission.” Now to me this is making her partially his slave; it’s giving him a veto right over how she uses her own body. but by your reasoning, this objection is question begging.

It is question begging. It begs the question of who has the rights to have sex.

It’s not question-begging if we both already agree that the woman in question is the one who gets to decide. As we do agree, I assume. In the case of IP, we already both agree on the legitimacy of rights in scarce resources. So it is not question-begging to appeal to this either. Unless you are going to admit to us that in the name of IP you reject the idea of private property rights, and are willing to invade and undercut property rights for the sake of IP.

Wildberry June 26, 2011 at 9:45 am

@Stephan Kinsella June 26, 2011 at 1:12 am

The question begging I’m referring to is your conclusion. Let me show you:

It’s not question-begging if we both already agree that the woman in question is the one who gets to decide. As we do agree, I assume.

Yes…

In the case of IP, we already both agree on the legitimacy of rights in scarce resources.So it is not question-begging to appeal to this either.

I think it is. I I reject your use of “scarcity” to exclude “works” for example. It beggs the question of legitimacy by assigning a meaning to scarcity that excludes IP, while I can argue that “works” are rivalrous. This is one of your fallacies, which equivocates on the meaning you assign to “ideas” in relation to “works” and ultimately IP. By adopting the meaning of scarcity you do, you assume your conclusion that to defend a right you don’t have violates NAP.

Unless you are going to admit to us that in the name of IP you reject the idea of private property rights, and are willing to invade and undercut property rights for the sake of IP.

Us? Well, I do not reject the idea of private property rights, as I just explained. But by this point in your argument, you have already assumed your conclusion, which is why you are free to go on and “prove” that IP is a violation of property rights.

Stephan Kinsella June 26, 2011 at 11:26 am
In the case of IP, we already both agree on the legitimacy of rights in scarce resources.So it is not question-begging to appeal to this either.

I think it is. I I reject your use of “scarcity” to exclude “works” for example.

Does not matter. The point is we both already agree that scarce resources are properly ownable. We disagree on whether it is ONLY scarce resources that are ownable, but we both agree that scarce things are ownable. And if I can show that a proposed (and contested, controversial) right to own nonscarce things is incompatible with the property rights in scarce things that we both agree on, then this shows a problem with property rights in nonscarce things. And it is not question-begging.

Wildberry June 26, 2011 at 11:45 am

@Stephan Kinsella June 26, 2011 at 11:26 am

Does not matter. The point is we both already agree that scarce resources are properly ownable.

No, our disagreement is on the meaning and implications of “scarcity”. In my world, scarcity encompasses IP, in yours it doesn’t. So how is it we agree?

So, your “showing” is based on a false premise, that IP is non-scarce. This is derived from an equivocation of “ideas” and “IP”, which is false.

By equivocating in this way, you can claim that IP is non-scarce, cannot be owned, and therefore violates the principle of private property rights based on a theory of scarcity as the only legitimate route to securing property rights. Such circular logic requires you to use your own faulty definitions of “scarcity” and “ideas” to suport your conclusion.

By begging the question about the scarcity of IP, you reach a faulty, or at least unsupported conclusion. You assume in your premise your conclusion; begging the question.

Stephan Kinsella June 26, 2011 at 12:05 pm

Nymberry:

Does not matter. The point is we both already agree that scarce resources are properly ownable.

No, our disagreement is on the meaning and implications of “scarcity”. In my world, scarcity encompasses IP, in yours it doesn’t. So how is it we agree?

this is maddening, pettifogging. Now you compound your equivocations and question begging with semantic arguments? First, evne IP advocates usually recognize ideas are not scarce. They want to protect it anwyay. They want to add scarcituy where none exists. Now here you are denying information is nonrivalrous. This is ridiculosu.

Second, even if you are right, STILL, it is a fact that you and I (say) DO agree on the idea that there are and ought to be property rights in X, where by X I mean things like cars, land, bodies, gold. NOw I say these are scarce goods, and you agree–you just think there are other scarce goods, but this is contested. So now by your timewasting, disingenuous, pettifoggin resort to semantics, now we have the same issues, but now to deal with your disingenuity I have to say “okay, nymberry, we agree that there ought to be property rights in subset 1 of scarce things [meaning physical objects and resources], but not in recipes, which you regard as a subset of scarce things and I do not”. So still, it is not question begging for me to say that you and I both agree that there are property rights in physical objects/things. Then the quesiton is; what about ideas, pattersn, recipes. That is what we disagree on.

If you keep this timewasting disingenuity up, I am done talking with you, Wildberry.

Wildberry June 26, 2011 at 3:20 pm

@Stephan Kinsella June 26, 2011 at 12:05 pm

this is maddening, pettifogging. Now you compound your equivocations and question begging with semantic arguments?

Equivocation is a matter of semantics, isn’t it; the misleading use of a term with more than one meaning or sense? This is the nature of my objection; the equivocation on the meaning of the terms “scarcity” and “ideas” and “IP”. I think I understand pretty well how you employ them to make your argument. I think it is necessary to equivocate to reach the conclusion you do.

First, evne IP advocates usually recognize ideas are not scarce.

If you mean here by “ideas” the simple building blocks of language or concepts, in the same sense that letters of the alphabet are building blocks of written language, sure. But to imply that the meaning of ideas as they relate to copyrights is a simple, common sense concept with only one possible meaning or interpretation, just check out this entry from Wikipedia. http://en.wikipedia.org/wiki/Idea

I am citing it not as an authority to anything. Rather as anecdotal evidence that you cannot assume a common, universal understanding of the term. As such, it is susceptible to equivocation. Your argument against IP depends on just such a usage.

They want to protect it anwyay. They want to add scarcituy where none exists. Now here you are denying information is nonrivalrous. This is ridiculosu.

I do not want to protect ideas with IP laws, as I have said many times. In addition, apparently copyrights do not seek to protect ideas either, since they are specifically excluded from the subject matter of the statutes.

Therefore there must be a distinction between what you call “ideas” and what is meant by “IP” or what is the subject matter of copyrighted “works”. You attempt to erase any distinction between one and the other, and I object. You do the same thing with information. If information was universally understood and so well defined, why go to all the trouble defining the subject matter of copyrights; couldn’t we just say “information is protected”?

If one adopts one meaning of “ideas” or “information” one can infer that they are non-rivalrous. However, if one adopts a meaning of “work”, which acknowledges that “idea” and “information” are components of a “work”, then you are still left with distinguishing between these ideas, information and “works”. The fallacy of equivocation makes it possible to simply skip over this problem, apply the meaning that supports your conclusion, and then support your conclusion with the meaning you have selected for that purpose; you simply gloss over your intended meaning and move right to your conclusion. I object.

Second, even if you are right, STILL, it is a fact that you and I (say) DO agree on the idea that there are and ought to be property rights in X, where by X I mean things like cars, land, bodies, gold. NOw I say these are scarce goods, and you agree–you just think there are other scarce goods, but this is contested.

Fair enough. The concept of scarcity “may” include “works” within the meaning of copyrights. That is a point of controversy.

So now by your timewasting, disingenuous, pettifoggin resort to semantics, now we have the same issues, but now to deal with your disingenuity I have to say “okay, nymberry, we agree that there ought to be property rights in subset 1 of scarce things [meaning physical objects and resources], but not in recipes, which you regard as a subset of scarce things and I do not”

As Ronald Reagan might say, “There you go again”.

You have introduced the word “recipes” as something I believe is a scarce thing, implying that I believe they should properly be a subject matter of copyrights. I do not. This is from the U.S. Copyright Office website: http://www.copyright.gov/fls/fl122.html

Copyright law does not protect recipes that are mere listings of ingredients. Nor does it protect other mere listings of ingredients such as those found in formulas, compounds, or prescriptions. Copyright protection may, however, extend to substantial literary expression—a description, explanation, or illustration, for example—that accompanies a recipe or formula or to a combination of recipes, as in a cookbook.

So we can all now see that your use of recipes as an equivalent concept to copyright protected “works” is false. Recipes are not protected by copyrights for the same reasons ideas are not protected. Yet you insist on equivocating “recipe” with “scarce goods” and then argue that I am asserting they are the subject matter of copyrights. I am not.

Therefore your argument is reduced to this: “IP is equivalent to a recipe. Recipes are non-scarce, therefore IP is non-scarce. Since only scarce goods can be treated as property, you cannot treat IP as property.”

This conclusion is based on an equivocation, and begs the question as to whether IP is or is not properly called “scarce” and whether as such, it warrants treatment as property.

So still, it is not question begging for me to say that you and I both agree that there are property rights in physical objects/things. Then the quesiton is; what about ideas, pattersn, recipes. That is what we disagree on.

I guess it is ultimately up to me to state what I disagree with you about, and this aint it.

To be clear, for the umpteenth time, ideas, patterns or recipes are not the subject matter of copyrights. They are not scarce, even by your meaning. They should not and are not treated as property. In fact, copyright law specifically and explicitly excludes them from protection. Those are facts that can be verified by anyone interested enough to do a little web-surfing.

It is unreasonable to oppose something for doing what it specifically seeks to avoid. One of the primary objectives of IP law is to protect the public’s right to ideas, knowledge and innovation, and to make sure that things that are properly part of the public domain, (or commons, if you prefer) remain there.

So where does that leave us?

If you keep this timewasting disingenuity up, I am done talking with you, Wildberry.

Ad hominem.

How about this; Why don’t you post an updated article explaining why an original manuscript is not scarce, and I will answer you in detail? That would be interesting.

Stephan Kinsella June 26, 2011 at 4:46 pm

Pettifogberry,

I do not want to protect ideas with IP laws, as I have said many times. In addition, apparently copyrights do not seek to protect ideas either, since they are specifically excluded from the subject matter of the statutes.

I am not going to argue with you about this. You outrageously favor IP law to protect property rights in ideas, and then you crawfish and deny that you want IP in ideas when you are pushed on it. Ridiculous. I refuse to engage this dishonesty. You may be getting to have your cake and eat it too in the current law, but I refuse to condone it.

The concept of scarcity “may” include “works” within the meaning of copyrights. That is a point of controversy.

No, it’s not. Advocates of IP routinely acknowledge that ideas, recipes, etc. are nonscarce and that they solve this “problem” wiht IP. I refuse to truck with someone who refuses to acknowledge straightup the nature of the evil they promote.

To be clear, for the umpteenth time, ideas, patterns or recipes are not the subject matter of copyrights.

This is incredible. You are denying the obvious? Are you a liar, are just stupid?

So where does that leave us?

Nowhere. I am not going to debate you if you bait and switch like this. You’re dead to me.

Wildberry June 26, 2011 at 6:10 pm

@Stephan Kinsella June 26, 2011 at 4:46 pm

Mr. Kinsella,

This is the most revealing post I have seen from you yet.

I am not going to argue with you about this. You outrageously favor IP law to protect property rights in ideas, and then you crawfish and deny that you want IP in ideas when you are pushed on it. Ridiculous. I refuse to engage this dishonesty. You may be getting to have your cake and eat it too in the current law, but I refuse to condone it.

Taking your football and going home? How can you say I do (want to protect property rights in ideas) when I just got through confirming to you I do not?

I deny that I want IP in ideas. No need to push. I am asserting that there is an important and crucial distinction between ideas and IP. I am certainly not the original author of that concept.

If I am getting my cake and eating it too, as you say, then it should be a trivial matter to demonstrate how.

Wasn’t it your star pupil, Mr. Surda, who said cowards run away from debates?

No, it’s not. Advocates of IP routinely acknowledge that ideas, recipes, etc. are nonscarce and that they solve this “problem” wiht IP. I refuse to truck with someone who refuses to acknowledge straightup the nature of the evil they promote.

I do not speak for “Advocates of IP”. We are not a club for which I am spokesperson.

I do not say that ideas and recipes are non-scarce. Deal with that. I do say that original works of authorship are scarce, and I am challenging you to debate that point.

This is incredible. You are denying the obvious? Are you a liar, are just stupid?

I am not a liar, but I may be stupid, but if that is the case it should be a trivial matter to demonstrate it to everyone here. What you call obvious I call equivocation. Calling something “obvious” is a tool for those who wish to deceive or obscure some important distinction. If it’s that obvious, what is the harm in explaining it and subjecting that explanation to scrutiny?

So where does that leave us?

Nowhere. I am not going to debate you if you bait and switch like this. You’re dead to me.

I thought so. By the way, I’m not your heir. I don’t need your approval to express my opinions. Me being dead to you is hardly a threat.

I made a reasonable suggestion that might clear up a good deal of controversy about your anti-IP position. You declined. The offer stands. I’m not going anywhere.

Stephan Kinsella June 26, 2011 at 7:45 pm

Nymberry:

I deny that I want IP in ideas. No need to push. I am asserting that there is an important and crucial distinction between ideas and IP. I am certainly not the original author of that concept.

The whole point of IP is to protect nonscarce information patterns (ideas, recipes, etc.) by making them scarce by operation of law.

If I am getting my cake and eating it too, as you say, then it should be a trivial matter to demonstrate how.

You say you don’t want to protect IP in ideas, yet you say you want to protect IP in “works” which you never define except in terms of ideas/patterns/information/knowledge/recipes.

I do not say that ideas and recipes are non-scarce. Deal with that.

But they are non-scarce. EVERY economist knows this. I will not debate this elementary fact with you. Learn some basic economics if you want to continue here.

I do say that original works of authorship are scarce, and I am challenging you to debate that point.

You don’t define “original work of authorship” in a coherent way. So you get to pretend this “work” is not the same as some recipe or pattern, yet you do not define it as the same as some impatterned object because that would show your hand. What a fraud.

Wildberry June 26, 2011 at 11:04 pm

@Stephan Kinsella June 26, 2011 at 7:45 pm

The whole point of IP is to protect nonscarce information patterns (ideas, recipes, etc.) by making them scarce by operation of law.

Says you, I know. There is no need for me to repeat my objection yet again. There is so much begging going on in this sentence, you need a tin cup.

You say you don’t want to protect IP in ideas, yet you say you want to protect IP in “works” which you never define except in terms of ideas/patterns/information/knowledge/recipes.

Of all people, I certainly don’t need to take up space here to explain the concept of “original works” to an IP lawyer. Don’t play coy. If there is no distinction to be made, then I wouldn’t be making one, and the statute would have no need to do so. It does.
You have my offer, which is reasonable. Apply your theories of property rights to the process of authorship and let’s see where it leads.

I do not say that ideas and recipes are non-scarce. Deal with that.

But they are non-scarce. EVERY economist knows this. I will not debate this elementary fact with you. Learn some basic economics if you want to continue here.

OK, that was a very bad typo. My bad. I hope you understand I meant “I do not say that ideas and recipes are scarce”, which was the thrust of my entire last few posts. If they were, they would be protected as the subject matter of copyrights. They are not. I agree with that, they shouldn’t be.

However, that is not equivalent to saying that IP is non-scarce. Ideas are non-scarce and “works” are scarce precisely because there is a crucial distinction between the two, as I’ve said. This is consistent with everything I have said up to the typo.

I do say that original works of authorship are scarce, and I am challenging you to debate that point.

You don’t define “original work of authorship” in a coherent way. So you get to pretend this “work” is not the same as some recipe or pattern, yet you do not define it as the same as some impatterned object because that would show your hand. What a fraud.

Are you serious? I know you are a patent lawyer, but are you claiming that you have no idea how copyright law defines a work? If you do, let’s start with that.

I could define Moby Dick as merely an “impatterned object” but that completely glosses over the point, the main, crucial point; impatterened with what? How? How can this be distinguished from a mere “pattern” and why is it scarce in the sense of other scarce resources? How is such an “impatterned object” distinguished from an object impatterned with mere ideas or recipes or formulas or facts? I think those are rather important questions, don’t you?

Look, I really don’t have a dog in this fight. If you embarrass me by pointing out my folly, I will be grateful. I have no career or reputation to protect by winning this argument. I have found it interesting and thought provoking to unravel your narrative. But I’ve accidentally gotten pretty familiar with your arguments. But I am no IP scholar, like you. So I am asking you to put on the prosecution, and I’ll defend.

Start with an author, who using his own private means, produces an original manuscript that meets the criteria of an “original work of authorship” within the meaning of copyright law. Apply your theories of scarcity and homesteading and NAP to show why, once it is disclosed by the release of a copy of that manuscript, it is non-scarce, non-rivalrous and is not a legitimate subject of property law.

I will refute your piece in detail. Let the chips fall where they may.

Wildberry June 24, 2011 at 12:51 pm

@ anon June 24, 2011 at 4:34 am

You are right in your thinking but wrong on the operation of law. A rental agreement is a contract between two people, and only affects the parties to the contract. The problem Kinsella is raising is that if one of the parties violated the contract, the action would be between parties. If a third party “innocently” violated the contract, there is no cause of action against him.

Except for this problem, IP could be recreated by contract, since you could reproduce the statutes in the contract and get the other party to agree.

This is the important distinction being raised here. Property rights do not depend on privity of contract; they are valid against everyone. That is their function, as a human device for establishing and securing rights of ownership; i.e. possession and use of property.

This is why IP operates as a property right. To try to handle this as a contract issue would raise the transaction costs of selling books, for example, to the point that no one would agree to do it, either authors or buyers. The first one to buy a book would be accepting liability for the world, since the first copy to be illegally reproduced could be copied in turn, and there would be no way to stop it once it got started. This is Kinsella’s point about why no would accept these “stupid terms”.

Unfortunately, he makes it out that there is no way around this, and so authors would have to give their stuff away and books would be therefore cheaper for everyone.

Of course, this ignores the problem of producing for external economies, and if there is no return for production, production would cease, for the most part, and books would be rare and only offered in closed, secret societies. In this regard, Kinsella’s vision is a way to return us to the dark ages.

sweatervest June 24, 2011 at 1:15 pm

“The problem Kinsella is raising is that if one of the parties violated the contract, the action would be between parties. If a third party “innocently” violated the contract, there is no cause of action against him.”

No that is not what anyone said, please give me one quote or anything to support this. Nobody ever suggested that someone can steal from a contractor and that the person stolen from is a contractor makes a difference. Where did you get this from?

“Unfortunately, he makes it out that there is no way around this, and so authors would have to give their stuff away and books would be therefore cheaper for everyone.”

No he did not say that. More “sleight of hand”. You can’t give away something you don’t own. There are not property rights in creative works because there is no purpose to exercise exclusion because those works are non-rivalrous and exclusion is not a necessary condition of use.

“Of course, this ignores the problem of producing for external economies, and if there is no return for production, production would cease, for the most part, and books would be rare and only offered in closed, secret societies. In this regard, Kinsella’s vision is a way to return us to the dark ages.”

You are the most dishonest arguer I have ever encountered. We have already been through all of this, and you are now pretending like none of it happened. I have already explained in detail why your claim that positive externalities leading to no production would mean people would never, for example, wear deodorant without being paid by everyone that smells it. You didn’t respond and are now pretending like your claim has gone unchallenged. Again, the most dishonest arguer I have ever encountered. It gives me solace to see the biggest pro-IP guy here sinking so low to save his position.

terrymac June 24, 2011 at 6:16 am

The word “predial” may be well known to lawyers, but ordinary human beings may have to resort to a dictionary:
From Merriam Webster:

Definition of PREDIAL
: of or relating to land or its products
Origin of PREDIAL
Middle English prediall, from Medieval Latin praedialis, from Latin praedium landed property, from praed-, praes bondsman, from prae- + vad-, vas surety — more at wed
First Known Use: 15th century

Stephan Kinsella June 24, 2011 at 6:43 am

Yes, Terry, that’s why I provided definitions in my post.

Wildberry June 24, 2011 at 12:33 pm

Mr. Kinsella:

As usual, you turn the facts on their head to serve your purposes. Allow me to explain:

The concept of easement (positive and negative) generally involves two parcels while a servitude may operate without reference to another. This is the relevant concept being explored here, so for clarity I will use servitude from here on.

A servitude is a concept for describing a situation concerning ownership rights of land, and under which the land is burdened with a restriction on its use.

A “predial” servitude is a formalized legal device for establishing, recording, and enforcing such limitations in real property law. Once established, it runs with the land as long as a bona fide purchaser (BFP) has notice. In real estate transactions, the fact that servitude is recorded on the deed serves as constructive notice to future buyers.

Property rights imply ownership of that property, which is the right to its exclusive use. All rights of use are initially bundled together, with the default condition being unlimited use. One way to describe the operation of a servitude is to say that it first unbundles certain uses by defining them as separate rights, and then places restrictions on those particular uses, while leaving all other rights undisturbed.

However, not all limitations of use, however, require a formal servitude. For example, in most places, you cannot use your property to store nuclear waste, yet nowhere has this been recorded on the deed, or established voluntarily by the burdened land owner. This is an example of how all property rights are circumscribed by the rights of others. All property has inherent limitations on uses which violate the rights of others.

When you say:

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.

You are misstating the situation in a couple of ways. First, a servitude is not a “taking”; it is a voluntary relinquishment of certain rights of use that the owner would otherwise have, as a condition of taking limited rights of possession. If he does not have them (nuclear waste storage), a servitude is not required; the limitation exists as a matter of law. If he legally has them, then they remain his until he relinquishes them through an enforceable servitude.

Second, no one is forced to accept a servitude that pre-exists on a parcel of land. The option is to forego the purchase. While the owner of a particular parcel may have a monopoly on that particular land, all land is not owned by a monopoly on land. The consumer of land has free will to choose.

Third, no one gets a “veto right”. This implies that if the burdened landowner wants to do something, he must go to “someone” to ask permission, and that person has the option of saying “no”. This is not correct.

When a person does something he has no right to do, anyone injured by that act has a cause of action against him. If a burdened party violates the limitation of use imposed by a servitude, an injured party can enforce the violation of their own rights not to be injured. This is no different than limitations imposed by public policy; if I store nuclear waste on my private property, anyone injured has a cause of action against me.

To call any of this a “veto right” is to mischaracterize the operation of law.

The analogy being drawn to IP law is as follows: Using copyrights to illustrate the point, the property (work) is initially owned by the author. He has complete ownership of all the bundled rights of use in that work. He transfers copies of that work to a purchaser (BFP) with limitations on its use. Such a limitation of use is analogous to a servitude in land.

In the same way that ignorance of the law is no defense, everyone is aware of the existence of copyrights. In the avoidance of all doubt, the work has a copyright notice printed on it. The BFP is on notice that the work he is acquiring has a limitation of use attached to it, and the acceptance of possession is consent to those limitations. Like all consumers, he is free to forego possession and reject those limitations.

Since you already concede that “this is legitimate only if A voluntarily agrees to it.”, then the limitation so imposed would be legitimate by your own admission.

What about the argument that such a transfer is a contract and does not affect third parties?

Returning to servitudes in land, a buyer who was not a party to the original formation of the servitude is no less bound by it, because the enforceability of the servitude is established by notice that the limitation on use is a property right, and as such, is enforceable against violations of that right. No matter how many times the title to land is turned over, as long as there is actual or constructive notice, the limitation is enforceable against all parties, and runs with the land.

Likewise, every time a work is obtained by a third party, they have constructive notice (since they must be aware that they are not the author), that rights are limited by the existence of copyrights. Therefore it is not necessary that the author and the user have privity in contract.

In other words, using the language of the analogy being examined here, the possessor of a work (book, say) is on notice that the work is being transferred with a servitude limiting the possessor’s rights of use.

When you say:

In other words, it is quite clear that patent and copyright divest owners of property (and self-owners of their bodies) of some of their property rights by assigning to IP holders a negative personal servitude that was never purchased by the holder or contractually or voluntarily sold by the original owner. This helps make it clear that IP robs people of property rights.

You completely turn the situation upside down. In order to divest some of your property rights, you must own them first. In order for a person to own a work first, they must author it. If they are not the first owner, they must acquire it from somewhere.

This means that they can only possess a work if they acquire it from some channel of distribution, and such a channel can be traced back to the source; the original owner. If all copies of a work must originate from the original author, and if each copy has a “servitude” limiting the rights of possession and use, then no subsequent possessor ever had the rights you claim IP laws divest.

Therefore it is impossible for IP to “rob people” of these property rights.

sweatervest June 24, 2011 at 1:07 pm

“As usual, you turn the facts on their head to serve your purposes”

You seem to systematically misunderstand what Kinsella or I ever say and think we are contradicting well-known facts. For example, you think our position is falsified by the coincidence of IP and innovation. You seem to think that facts prove/disprove theoretical claims.

Most of your post is just detailing what the current laws do. For the one trillionth time Wildberry, that does not establish any of those things as justified. Describe the law of the Third Reich all you want and it won’t make it right.

For example, you keep referencing the law that forbids people from storing nuclear waste on their property. That is an unjustifiable law because such storage does not necessarily cause damage to the property of others. Do you care at all what the law should be, or just what it is?

“You completely turn the situation upside down.”

No he’s describing what is happening.

“In order to divest some of your property rights, you must own them first”

When I buy a hard drive I buy the rights to store any pattern of bits I want on it.

“In order for a person to own a work first, they must author it”

You’re the one doing the property rights “sleight of hand” as you call it. I explained in detail in the last thread why there can be no property rights in the work itself. There is no such thing as ownership of a work. That is not a matter of “ought”, that is a matter of “is”. There are simply no ownership rights to speak of. It is a metaphorical grouping of physical property rights in everyone else’s recording devices. I certainly have the right to hum any melody I want with my vocal chords. Someone else copyrighting a melody does not take that right away from me.

Every time you speak of property rights in a work you really mean property rights in everyone else’s recording devices. Admit it.

“If they are not the first owner, they must acquire it from somewhere.”

I am the current owner of my recording devices that I did not steal. When I buy a computer I don’t license it from the seller, I buy it. There are no contracts involved, there is a complete transfer of ownership. I am not contracting limited uses of this property, I am its new owner and can use it in any way that does not violate the property rights of others, and I know you are going to plainly ignore this but I’ll say it *again* anyways: there are no property rights in creative works. The only thing you could possibly mean by such metaphorical nonsense is property rights in my and everyone else’s hard drive. I never agreed to that so you don’t get those property rights. Me losing ownership rights by no action of my own is an act of violence on part of the one taking those ownership rights.

In order to be stolen from, something must be taken away from you. Having your work copied is not having anything taken away from you (except perhaps the original copy but we have already discussed what that entails). Why is that so hard to understand? Why is it so hard to just acknowledge that copying is not taking? Why is it so hard to admit that it is not the author that loses something from unauthorized copying, it is the copier that loses something by being forbidden to copy!!? WHY? Why is that so hard!??

“This means that they can only possess a work if they acquire it from some channel of distribution, and such a channel can be traced back to the source; the original owner. If all copies of a work must originate from the original author, and if each copy has a “servitude” limiting the rights of possession and use, then no subsequent possessor ever had the rights you claim IP laws divest.”

Well they don’t! I don’t care what the current law states, which also states that I can’t have sex with the lights on. Your entire “if-then” is irrelevant because the “if” is false. Besides, as I have said so many times here and it just gets ignored every time, UNAUTHORIZED COPIES ARE NOT CREATED BY THE AUTHOR. The author has no ownership claim what-so-ever to unauthorized copies.

Are you telling me that if I steal your wrench and use it to fix my car, justice is served by you taking your wrench back *and* re-breaking my car? Answer that Wildberry. Ignore the rest of this post if you want but answer that one question.

“Therefore it is impossible for IP to “rob people” of these property rights.”

No it is possible and happens. How are you seriously telling me that when a melody is copyrighted and I am therefore no longer able to hum it with my vocal chords that I was not robbed of my property rights?

Matthew Swaringen June 24, 2011 at 1:16 pm

You should stop using your brain to record the songs that you are humming, lol.

Wildberry June 24, 2011 at 1:53 pm

@ sweatervest June 24, 2011 at 1:07 pm

With all due respect, it is hard for me to take you seriously. However, I will answer this one question, as you ask:

Are you telling me that if I steal your wrench and use it to fix my car, justice is served by you taking your wrench back *and* re-breaking my car? Answer that Wildberry. Ignore the rest of this post if you want but answer that one question.

If you steal my wrench, you have violated my property rights and I have a right to restitution. In calculating the damages I suffered, I may calculate that part of what you “stole” were the repairs you gained by misappropriating my property.

Because civil actions to not result in punishment but recovery of damages, the harm will be converted into a calculation of money damages. Part of that calculation may involve an assessment of the value of the repairs, which could not have happened without my wrench, which you stole. Damages you owe me might include therefore, the rent for my wrench and the value of the benefit you gained as unjust enrichment from use of my wrench.

Breaking your car would be punishment to you, but of no value to me. That is the theory of punishment in criminal law. In civil law, the measure of injury is money damages. Therefore, no, justice is not served by re-breaking your car. Justice is served by you paying me for the benefit you received by stealing my property.

Peter Surda June 25, 2011 at 5:26 am

Wildberry,

If you steal my wrench, you have violated my property rights and I have a right to restitution. In calculating the damages I suffered, I may calculate that part of what you “stole” were the repairs you gained by misappropriating my property.

Now, here comes the dreaded question: had I used the stolen wrench to repair a third parties’ (let’s call him X) car, would it be legitimate for you to re-break X’s car, or demand restitution from X? I say no, because that would violate X’s rights. X never violated your rights, nor does he have a contract with you, therefore there is no basis for your actions against X. IP theories, however, require you to say yes, which leads to a self-contradiction.

nate-m June 25, 2011 at 5:40 am

I don’t know why you bother. The man is impervious to logic.

Peter Surda June 25, 2011 at 6:36 am

Habit I guess.

Wildberry June 25, 2011 at 10:38 am

Nate-m
That was a little harsh, don’t you think?

Surda

No need for the drum-roll, it is “elementary” Watson.

Liability rests with the person responsible for the act. The third party would only be implicated if they had knowledge that the wrench was stolen, or participted in the theft. In either case, restitution is the rememdy for civil law, and fines and jail is the rememdy in criminal law.

There is no contradiction, as usual. IP operates as a property right, and infringement on those rights acts against everyone who infringes that right, much like trespassing does not depend upon having a contract first. That is the nature of property rights.

No matter how you try to play Twister wtih the facts, you just end up ass over teacup.

Nate-m; does that seem illogical to you?

Peter Surda June 25, 2011 at 11:33 am

Wildberry,

Liability rests with the person responsible for the act.

Exactly. So if person B violates person’s A right in the original x and creates a copy x2, a third party C, who observes the copy x2 and makes another copy x3 is not involved in a violation of property rights: he was never in contact with x, might not even know it exists, and he has no contract with A. However, copyright requires that nevertheless this is interpreted as a violation of property rights, thereby creating a self-contradiction.

The third party would only be implicated if they had knowledge that the wrench was stolen, or participted in the theft.

This is not correct. Knowledge alone of a crime does not make a person liable for anything (both in current law as well as libertarian law). Currently, you might be obligated to report a crime you know of, but in most cases there is no restriction for otherwise using this knowledge for your own benefit.

There is no contradiction, as usual.

Of course there is. If you were one iota more self-contradictory, your body would dissipate into non-existence.

against everyone who infringes that right

(emphasis added). Correct. But IP requires that people who were not involved in a right violation are nevertheless liable for damages or will be subjected to expropriation.

nate-m June 25, 2011 at 1:37 pm

Nate-m
That was a little harsh, don’t you think?

I was going to be meaner on more occasions.

There is no contradiction, as usual. IP operates as a property right, and infringement on those rights acts against everyone who infringes that right, much like trespassing does not depend upon having a contract first. That is the nature of property rights.

The problem is IP is the reverse. If gives you the right to trespass on other people’s property without their consent, knowledge, or contract. It’s as if you have a license from above that gives you the right to actively disregard any ownership of any physical property in order to establish licensing rights in a completely arbitrary way.

Nate-m; does that seem illogical to you?

Give a concise definition of what exactly IP is without using strained metaphores and we can start with that.

Wildberry June 25, 2011 at 2:24 pm

@ nate-m June 25, 2011 at 1:37 pm

See my response on a new thread.

Wildberry June 25, 2011 at 1:21 pm

@Peter Surda June 25, 2011 at 11:33 am

Exactly. So if person B violates person’s A right in the original x and creates a copy x2, a third party C, who observes the copy x2 and makes another copy x3 is not involved in a violation of property rights: he was never in contact with x, might not even know it exists, and he has no contract with A.

Have you been following this discussion at all? If you want to discuss contract law, then you have to start with the contract.

IP is not a contract, it is a property right. Therefore you have to discuss it in the context of property rights. You cannot analyze property rights by referring to contracts.
Contracts depend upon privity, property rights does not. Case in point:

However, copyright requires that nevertheless this is interpreted as a violation of property rights, thereby creating a self-contradiction.

Moving on…

The third party would only be implicated if they had knowledge that the wrench was stolen, or participted in the theft.

This is not correct. Knowledge alone of a crime does not make a person liable for anything (both in current law as well as libertarian law). Currently, you might be obligated to report a crime you know of, but in most cases there is no restriction for otherwise using this knowledge for your own benefit.

I am not your law professor, so you will have to get educated elsewhere.

Knowledge of a crime way well give rise to liability; harboring a fugitive, for example.

Participating in a crime directly, or indirectly by “willfull ignorance” may also make you an accomplice. Receiving stolen goods is an example.

There are restrictions for using knowledge of a crime for your own benefit. Insider trading is an example.

That’s 0 for 3.

There is no contradiction, as usual.

Of course there is. If you were one iota more self-contradictory, your body would dissipate into non-existence.

Poof!

against everyone who infringes that right

(emphasis added). Correct. But IP requires that people who were not involved in a right violation are nevertheless liable for damages or will be subjected to expropriation.

Yes, grasshopper, IP being a property right does not require privity of contract to be enforceable. No one can copy a protected work and be innocent since they have knowledge that they are not the author, and they have knowledge that copyrights exist to protect works.

In any case, ignorance of the law is no defense. Is there anyone who could claim that they didn’t know murder was against the law? How about speeding? Yet you think someone who copies protected works is innocent because they didn’t know about copyrights?

Bizzraro.

Peter Surda June 26, 2011 at 4:38 am

Wildberry,

Have you been following this discussion at all? If you want to discuss contract law, then you have to start with the contract.

You are the one who always deviates from the flow of debate, and then subsequently complains when others follow. So you’re a hypocrite too.

IP is not a contract, it is a property right. Therefore you have to discuss it in the context of property rights. You cannot analyze property rights by referring to contracts.

Whatever IP is or isn’t, we need to analyse how exactly it fits into the legal system and what are the points that decide how to interpret a situation.

Knowledge of a crime way well give rise to liability; harboring a fugitive, for example.

I specifically said that knowledge alone does not give a rise to liability. Harboring a fugitive is not knowledge alone, it’s a specific subset of knowledge. Another example of you being completely oblivious to elementary logic and trying to confuse.

I know the location of a large number of criminals. They are in prison. But this knowledge does not create any obligation on my part. I can use this knowledge any way I wish, to my own advantage or detriment. This knowledge has no effect on my legal rights.

Participating in a crime directly, or indirectly by “willfull ignorance” may also make you an accomplice. Receiving stolen goods is an example.

Again, none of these examples are knowledge only. I specifically avoided “receiving stolen goods” in my examples, because it is fuzzy area. For example, it is sometimes possible to repossess stolen goods from a third party without violating the third party’s rights, so this is not a good example that clarifies the situation.

There are restrictions for using knowledge of a crime for your own benefit. Insider trading is an example.

This is not a correct example either. Insider trading is not triggered by knowledge of a crime. Rather it is using knowledge that you have due to your privileged position in some specific context. The insider trading itself is the crime, rather than the acts preceding it (e.g. obtaining the knowledge, or the acts that create that knowledge).

That’s 0 for 3.

Only in your dreams.

IP being a property right does not require privity of contract to be enforceable.

Correct, but we are analysing how to define what acts constitute a violation of IP. I have been explaining the inconsistency of pro-IP arguments in applying the same line of reasoning to arrive to different conclusions.

No one can copy a protected work and be innocent since they have knowledge that they are not the author, and they have knowledge that copyrights exist to protect works.

You are using the word “protected work” in a vague manner to refer not only to the original, but recursively to its copies too. This is a unique pull-out-of-your-ass condition that does not have an analogy in other parts of the legal system, and that’s what I’ve been explaining.

Let me ask again what I asked already several months ago, the logical base for IP: if X performs action A, and Y performs action B, causally related to action A, and X does not like it, is this a sufficient condition to conclude that Y violated X’s rights?

sweatervest June 27, 2011 at 10:59 am

“In any case, ignorance of the law is no defense”

Oh but complete and total ignorance of ethics, natural rights, property rights, the thing that this discussion is *ABOUT*, is perfectly acceptable.

No, see, property rights are a human device and they can be whatever people agree they should be. Who cares how completely ignorant that is of what property rights even are?

sweatervest June 27, 2011 at 10:58 am

So you took several paragraphs to answer “no” to my question “If I steal your wrench and use it to fix my car then do you have a right to undo what I did to my car?”

Also, claiming that I “stole” the repairs is simply a lie. I stole the wrench. Now you are off in metaphor land like you usually are, stretching the definitions of words to the point they don’t mean anything anymore. To steal is to take something. I can’t take repairs from you, and if I use your wrench to fix up my car you would be lying to claim you had more taken from you than if I stole your wrench and kept it in my tool box. Either way you lose the same thing: the wrench. Claiming you lost more because of how I used it to benefit myself (assuming I did not damage the wrench in the process) is plainly wrong.

“Breaking your car would be punishment to you, but of no value to me”

What if you’re really vengeful and it is valuable to you? Would that make it okay?

You just don’t get that your value judgements do not produce claims of violations. Property is defined by physical borders so people like you can’t claim that anything people do that makes you unhappy is an excuse for you to wield violence against them.

Wildberry June 25, 2011 at 2:37 pm

@ nate-m June 25, 2011 at 1:37 pm

Copyrights: Copytrights secure economic rights in an author’s original, fixed works of authorship.

Each word in this definition are each in turn defined as to their meaning and application within the context of copyrights.

“Secure” means these rights are provided by an operation of property rights.

“Economic rights” refer to the limited rights of ownership derived from exclusive use and possession of property.

“original” is a qualification that the work must not already exist by a prior act of authorship to be a proper subject matter of copyrights.

“fixed” is also a qualification for inclusion as subject matter of copyrights and means recorded on a tangible medium which can be comphrehended by a human.

“authorship” is the act of production of the work attributable to the author.

nate-m June 25, 2011 at 3:56 pm

Are “economic rights” worth securing at the expense of other people’s economic rights? There is no (or at least: there should not be) guarantees in life that your work, your efforts, will ever provide any sort of financial reward. There is no ‘economic rights’ that is natural or will happen in a free market.

Your definition of copyrights here are much more like the special legal privileges that Unions have then other types of ‘natural’ or ‘free market’ rights. Unions have special legal privileges and protections to limit the ability for non-unions to seek employment with certain employers during a dispute. That way when they have a dispute for a employer they can protect their ability to receive wages, benefits, and employment status. They speak of ‘economic rights’ also.

These things are grouped together with ‘social’ and ‘cultural’ rights. Rights to ‘freedom from starvation’ or ‘freedom from discrimination’ and such things.

http://en.wikipedia.org/wiki/Economic,_social_and_cultural_rights

Such things, in a libertarian tradition, are illegitimate. Economic rights, by definition, require state action to control the actions of actors in society. Libertarians support the freedom and liberty of individuals and these sort of ‘positive rights’ violate freedom and property rights.

If you want to say that economic rights, such as union privileges, copyrights, anti-discrimination rights, and other things like that are valuable and are needed by society then that’s certainly a valid argument. Unfortunately this is going to be a hard argument to make on this website since the majority of people here reject such “rights” outright.

Wildberry June 25, 2011 at 6:45 pm

@nate-m June 25, 2011 at 3:56 pm

I made a good faith effort to give you a meaningful response, and I’d hoped you’d do the same.

Are “economic rights” worth securing at the expense of other people’s economic rights?

What do you think I should answer to such a rhetorical question? All rights are limited by the rights of others. Obviously, Nate, one would have to have a system of determining what rights exist, and what rights trump others. For example, the right to life is not subordinate to another’s right to use his property as he pleases.

To try to make the meaning of “economic right” in the context of copyrights subject to a meaning you imply here is, well, you are not trying very hard. Rather than try to think of a strawman to oppose, why not stick with a relevant line of reasoning to make your case?

There is no (or at least: there should not be) guarantees in life that your work, your efforts, will ever provide any sort of financial reward. There is no ‘economic rights’ that is natural or will happen in a free market.

Do you really think I disagree with this?

Your definition of copyrights here are much more like the special legal privileges that Unions have then other types of ‘natural’ or ‘free market’ rights.

Well, the right I’m referring to is the right to private property, and the right of exclusive use of the products from one’s private means of production. What does that have to do with unions?

They speak of ‘economic rights’ also.

I’m sure they do, but are they defending IP when they do so? What is the economic right to private property? Isn’t that what we are talking about? So the rest of your post is off the mark. I am discussing the economic right to the benefits of your own private property. Is there some problem with that in the “libertarian tradition?

Economic rights, by definition, require state action to control the actions of actors in society. Libertarians support the freedom and liberty of individuals and these sort of ‘positive rights’ violate freedom and property rights.

Reel yourself in, Nate. Are all property rights “positive rights” because they have a place in the “state” laws? Is the only way a theory of property rights can arise is if the State decrees it? If not, then it is not reasonable to discount the property rights in IP on a basis that you don’t apply to other property rights.

If you want to say that economic rights, such as union privileges, copyrights, anti-discrimination rights, and other things like that are valuable and are needed by society then that’s certainly a valid argument.

It is never easy to make an argument with someone whose ideology prevents honest discussions and reasonable interpretation of the meaning of words. I would never lump the “rights” you have mentioned in the same category of rights. Why would you assume you can conflate meanings in this way, and then use that equivocation to “prove” your point? There is a lot of that going around, and it is not helpful, if it is reason and truth that brings you to this discussion. If you want to have an honest discourse, then use the meaning of my words within the context in which I use them.

If you want to understand the context, it would be more relevant to make the comparison to real property, which is what the discussion has been about this week, yes? I am saying that in relation to the way property rights operate with real property, IP is fundamentally no different. Kinsella has admitted as much in his “Negative Servitude” piece. So why do you need to bring in a completely different context for “economic rights” to make whatever point you intend to make?

Unfortunately this is going to be a hard argument to make on this website since the majority of people here reject such “rights” outright.

Me too. I also reject the premise that there is some kind of private property that becomes public without the owner’s consent. So if you are opposed to my point of view, to be honest you will have to take that into consideration when you argue against it.

We both know where this leads; you will argue, ala Kinsella, that IP cannot be property because “ideas are free”, and I will agree that ideas are free, but IP isn’t. If you want to challenge that, be honest about what you oppose. It is not honest to oppose something I haven’t claimed.

nate-m June 25, 2011 at 7:07 pm

I made a good faith effort to give you a meaningful response, and I’d hoped you’d do the same.

Just because you don’t agree with me doesn’t mean I didn’t.

To try to make the meaning of “economic right” in the context of copyrights subject to a meaning you imply here is, well, you are not trying very hard. Rather than try to think of a strawman to oppose, why not stick with a relevant line of reasoning to make your case?

I thought you meant exactly what you said.

‘Economic right’ is not a new term, it has common usage, and it’s definition is not disputable. If you did not mean to say ‘economic rights’ then you should of used a different term. It’s not my fault you don’t know the definitions of the phrases you use.

When other people talk about economic rights of authors they are actually meaning ‘the economic rights of authors’. Which means that they believe the government has a responsibility to ensure the profitability of the labor of authors. Under libertarian schemes there is no such thing needed or desired.

Reel yourself in, Nate. Are all property rights “positive rights” because they have a place in the “state” laws?

No. Property rights are not a ‘positive right’. They are ‘negative rights’. Meaning you have them when the state doesn’t violate them. This is not so for copyrights.

It is never easy to make an argument with someone whose ideology prevents honest discussions and reasonable interpretation of the meaning of words.

WTF Wildberry?

Why am I a Idealog because you don’t understand the definitions of the words and phrases your using?

I would never lump the “rights” you have mentioned in the same category of rights. Why would you assume you can conflate meanings in this way, and then use that equivocation to “prove” your point?

I did not conflate anything.

did you not see the title of wikipedia page?:

“Economic, social and cultural rights”

Economic, social and cultural rights are socio-economic human rights, such as the right to education, the right to housing, and the right to health. Economic, social and cultural rights are recognised and protected in international and regional human rights instruments. Member states have a legal obligation to respect, protect and fulfil economic, social and cultural rights and are expected to take “progressive action” towards their fulfilment.

http://www.metagora.org/training/encyclopedia/economic.html

Economic Rights
Economic rights have traditionally been referred to as part of the second generation of human rights, together with social and cultural rights. Indeed, the traditional classification of human rights is as follows:
the first generation refers to civil and political rights;
the second generation comprises economic, social and cultural rights; and,
the third generation refers to collective rights.
Economic rights include the right to work, the right to the free choice of employment and to just and favourable conditions of work; the right to form and join trade unions: the right to strike; the right to social security; and the right to own property.

http://www.hrcr.org/chart/economic+social/economic.html

http://www.salon.com/news/opinion/feature/2010/01/11/second_bill_of_rights

The case for economic rights
FDR said it and it holds 66 years later: There are benefits and opportunities every American should expect to enjoy

http://www.amnesty.org/en/economic-and-social-cultural-rights/what-are-escr

WHAT ARE ECONOMIC, SOCIAL AND CULTURAL RIGHTS?

60 years ago, the Universal Declaration of Human Rights proclaimed a wide spectrum of human rights that every human being has – without discrimination. They include not only rights to freedom of expression and freedom from torture and ill-treatment, but also rights to education, to adequate housing and other economic, social and cultural rights.

Economic, social and cultural rights are a broad category of human rights guaranteed in the International Covenant on Economic, Social and Cultural Rights and other legally binding international and regional human rights treaties. Nearly every country in the world is party to a legally binding treaty that guarantees these rights. They include:
rights at work, particularly just and fair conditions of employment, protection against forced or compulsory labour and the right to form and join trade unions;
the right to education, including ensuring that primary education is free and compulsory, that education is sufficiently available, accessible, acceptable and adapted to the individual;
cultural rights of minorities and Indigenous Peoples;
the right to the highest attainable standard of physical and mental health, including the right to healthy living conditions and available, accessible, acceptable and quality health services;
the right to adequate housing, including security of tenure, protection from forced eviction and access to affordable, habitable, well located and culturally adequate housing;
the right to food, including the right to freedom from hunger and access at all times to adequate nutritious food or the means to obtain it;
the right to water – the right to sufficient water and sanitation that is available, accessible (both physically and economically) and safe.

Who is responsible?
States – national governments – bear the primary responsibility for making human rights a reality. Governments must respect peoples’ rights – they must not violate these rights. They must protect peoples’ rights – ensuring that other people or bodies do not abuse these rights. And they must fulfil peoples’ rights, making them a reality in practice.

I know that it’s common to lump ‘intellectual property rights’ as ‘property rights’, but I think this is illegitimate. I think that this is a trick to confuse the situation.

I think that copyrights is exactly as you spoke.. it’s a ‘economic right’.

Maybe you can try again, but instead of using ‘economic rights’. Use something else.

nate-m June 25, 2011 at 7:17 pm

I know that it’s common to lump ‘intellectual property rights’ as ‘property rights’, but I think this is illegitimate. I think that this is a trick to confuse the situation.

Or if this is a bad turn of phrase and I am up the wrong creek… A more democratic statement (and possibly more correct) will be:

The ‘economic right’ is a form of property rights that is very different from private property rights. A copyright is a economic right, a property right, that is a positive right. It’s something that is created by state government to help ensure that the labor of authors and creators of original works are profitable through their action. This is, necessarily, a violation of negative rights, such as private property rights.

This is something that wikipedia agrees with a bit more:
http://en.wikipedia.org/wiki/Authors'_rights

nate-m June 25, 2011 at 7:24 pm

Yes… now that I think about it I like this definition of what IP is much more then my previous ones. It makes it much easier to be understood.

Wildberry June 25, 2011 at 10:31 pm

@nate-m June 25, 2011 at 7:17 pm

This is what happens when you go off half-cocked.

This is a reference to moral rights, which the US only recognizes in a limited way as a result of the Berne Convention. It has to do with the limited right of attribution to authors. It has nothing to do with what we are talking about.

Wildberry June 25, 2011 at 10:21 pm

@nate-m June 25, 2011 at 7:07 pm

Just because you don’t agree with me doesn’t mean I didn’t.

I’m not objecting to the fact that you may disagree, I object to you ascribing a meaning to “economic rights ” that has nothing to do with what I’m saying. Just because someone makes an Orwellian use of the language doesn’t mean you are free to take whatever meaning is convenient for you.

Do you agree that the term “economic good” has a meaning within the context of private property and economics? That’s the relevant meaning, which I think you know.

I thought you meant exactly what you said.

I did, and I didn’t say anything about unions, welfare, or anything else along those lines.

‘Economic right’ is not a new term, it has common usage, and it’s definition is not disputable. If you did not mean to say ‘economic rights’ then you should of used a different term. It’s not my fault you don’t know the definitions of the phrases you use.

So? You cannot pull the meaning you want out of nowhere relevant to this thread, and use it to argue against my position. If you wanted to know if that’s what I meant, you could have asked. First you assume, and then your argue against what you assume. You are wrong, and it isn’t helpful. What is your objective here?

When other people talk about economic rights of authors they are actually meaning ‘the economic rights of authors’. Which means that they believe the government has a responsibility to ensure the profitability of the labor of authors. Under libertarian schemes there is no such thing needed or desired.

Well, I can’t take responsibility for what other people say. As to the rest, I don’t believe that, didn’t say so, and wouldn’t.

Reel yourself in, Nate. Are all property rights “positive rights” because they have a place in the “state” laws?

No. Property rights are not a ‘positive right’. They are ‘negative rights’. Meaning you have them when the state doesn’t violate them. This is not so for copyrights.

OK, we agree then that we are not concerned with positive rights. Rights are not justified simply because they exist by law. Agreed. As for the rest, I don’t know what you are saying.

You have rights when you assert them and successfully defend them. In a civilized society, you must defend them with ethical principles, justice, and economic policy. IP is justifiable on all three grounds, even using “libertarian” principles.

Why am I a Idealog because you don’t understand the definitions of the words and phrases your using?

Because you are more concerned with reaching your foregone conclusion than you are in giving a fair and reasonable reading to what I’m saying. That short-circuits discourse because ideology trumps reason. I am not saying you are unreasonable or can’t follow logic. I’m saying your certainty about your conclusion makes you skip over the analysis of the justifications you have for your ideological conclusions. If this were not the case, you would be willing to grant me a reasonable interpretations of what I say instead of constructing a meaning that leads to your desired conclusions. That is the nature of dialogue with an ideologue, in my opinion, and that’s why I said it.

I would never lump the “rights” you have mentioned in the same category of rights. Why would you assume you can conflate meanings in this way, and then use that equivocation to “prove” your point?

I did not conflate anything.

Did you not see the title of wikipedia page?:

“Economic, social and cultural rights”
Economic, social and cultural rights are socio-economic human rights,

Did you not read the first sentence? Are we talking about “socio-economic human rights”? I thought we were talking about copyrights and property rights?

Or this? Didn’t this give you a clue?

Economic rights have traditionally been referred to as part of the second generation of human rights, together with social and cultural rights.

This is socialist BS. If you want to talk to Wikipedia, go for it. If you want to talk to me, don’t argue with me by quoting some unrelated concept by someone on Wikipedia.

I know that it’s common to lump ‘intellectual property rights’ as ‘property rights’, but I think this is illegitimate. I think that this is a trick to confuse the situation.
I think that copyrights is exactly as you spoke.. it’s a ‘economic right’.

Which explains why you jumped into left field.

Maybe you can try again, but instead of using ‘economic rights’. Use something else.

When you own a thing, you can transfer it to another, by sale, gift or abandonment. Ownership means exclusive right to use and possession of a thing, and those rights are freely alienable. Property that can be traded for value (as established by its price) is an economic good. Economic rights to a good means the right to benefit from its trade; output equals income. Private property means that economic rights to goods are owned by individuals. Public property means they are owned by a collective.

Economic rights to a good, including works which are the subject matter of copyrights, means the right to benefit from its exchange with a willing buyer.

When the producer of a good transfers that good to a buyer, and receives compensation (i.e. output equals income), he is producing for an internal economy.

When the producer of a good transfers that good to a buyer, and receives no compensation (i.e. output does not equal income), he is producing for an external economy.

In a free market, based on private property and the private ownership of the means of production, producers do not produce for external economies.

Care to work with that?

nate-m June 26, 2011 at 10:21 pm

I’m not objecting to the fact that you may disagree, I object to you ascribing a meaning to “economic rights ” that has nothing to do with what I’m saying. Just because someone makes an Orwellian use of the language doesn’t mean you are free to take whatever meaning is convenient for you.

I know you find it inconvenient that the rest of the world’s definitions differ with your’s, but it’s very unreasonable to get angry when people assume you meant what you actually said.

‘Economic rights’ means actually ‘economic rights’. I don’t understand your definition of it.

‘Economic rights’ means that you have a right to profit from your labor. This is a ‘positive right’ and requires a authority to enforce your ‘right’ to the detriment to other people’s. In a an-cap or libertarian society there is no such thing. The very idea of economic rights is a big government concept.

Do you agree that the term “economic good” has a meaning within the context of private property and economics? That’s the relevant meaning, which I think you know.

Economic good is a ‘good’ that is used in a economy. I used economic rights in the exact correct way and the meaning is every bit consistent with economic goods.

Wildberry June 27, 2011 at 12:01 am

nate-m June 26, 2011 at 10:21 pm

I know you find it inconvenient that the rest of the world’s definitions differ with your’s, but it’s very unreasonable to get angry when people assume you meant what you actually said.

First, I’m not angry.

‘Economic rights’ means actually ‘economic rights’. I don’t understand your definition of it.

OK, let’s start there.

‘Economic rights’ means that you have a right to profit from your labor. This is a ‘positive right’ and requires a authority to enforce your ‘right’ to the detriment to other people’s. In a an-cap or libertarian society there is no such thing. The very idea of economic rights is a big government concept.

OK, this may be a meaning that can be attributed to the words “economic right”. I don’t mean that.

Economic good is a ‘good’ that is used in a economy.

OK. Who owns the “economic good”? That person, the owner, has an economic right to that good secured by his property interest in it; his right to exclusive use and possession.

Is that clear? If so, let’s move on. What was your question again? :-)

sweatervest June 27, 2011 at 10:51 am

All this talk about easements is completely worthless. Easements having nothing to do with IP and their functioning is not analogous to IP at all. Kid Salami and Wildberry literally rely on their misunderstanding of property rights in general in order to vindicate their misunderstanding of IP.

Easements only involve those who sign contracts involving easements. It is obvious that this is the case and that third parties that do not sign contracts can never be bound by easements. They work just like any other term in a contract. Kid Salami thinks he found a contradiction because we claimed contracts cannot bind third parties, but easements do exactly that. No they do not. No contracts bind third parties ever. There is no contradiction, only a huge distraction that has produced pages of worthless posting over something that is not the topic of debate.

As has been pointed out over and over, IP cannot be an issue over what rights can be conditionally transferred with contracts. It is an issue over what those rights are to begin with. All they have accomplished is expressing their lack of understanding of how property rights and contracts work in general, which causes them to reach absurd conclusions about much more than just IP.

sweatervest June 27, 2011 at 11:08 am

Wildberry,

I am going to link you to Hoppe’s book “The Economics and Ethics of Private Property”. The second part contains most of the property rights theory. Read it, understand it, critique it if you want, but if you don’t then you are a lying hypocrite for calling anyone else ignorant. This has never been a debate over positive law, it has been a debate over property rights theories. I am giving you the chance right now to read a property rights theory and use it as a base of criticism. If you refuse to do so then your dishonest hypocrisy will be undeniably exposed to anyone that is reading through these blogs:

http://mises.org/books/economicsethics.pdf

Hoppe has already dealt with every single one of the criticisms you and Kid have brought up. I’m not here to spoon-feed you what you can read for free on the internet. Read it, get informed, have something useful to say, or stop wasting everyone’s time with your self-contradictory nonsense built from a total ignorance of the very thing you are trying to attack.

Wildberry June 27, 2011 at 11:33 am

@sweatervest June 27, 2011 at 11:08 am

I already know you think Hoppe is the last and final authority on all subjects. I also know that Hoppe follows the reasoning on property and contract rights advanced by Rothbard.

So, can I give you a reading list on property and contracts law? They wont’ be free, though.

sweatervest June 27, 2011 at 12:01 pm

Yep, whatever excuse you can make up to not read any property rights theory. You really are a lying hypocrite.

“I already know you think Hoppe is the last and final authority on all subjects”

Yeah, you already know something that is wrong. I gave you a link to a property rights theory so you can have something to criticize. I never said Hoppe is right. I never said I think Hoppe is the final authority. This is more dishonest crap that you are using to distract from the obvious point that when someone links you to material to read up on what is being discussed (as something to criticize, not agree with) you will do anything except read it.

You really are a troll.

Wildberry June 27, 2011 at 12:31 pm

You are being childish.

I have read some Hoppe and Rothbard, and some other stuff which I don’t need to list to have cridibiltiy with you.

Hoppe bases his fundamental position on property rights and contracts on Rothbard. Got it.

Unlike you, I actually try to understand what I’m talking about before I express my opinions.

So interest of honesty, you said:

I never said Hoppe is right. I never said I think Hoppe is the final authority.

So you you think he is right? Is he the final authority on property rights?

Why?

sweatervest June 27, 2011 at 12:47 pm

“You are being childish”

No I’m dealing with your deception and rhetorical sophistry as it should be dealt. I love how you expect to try and trick and confuse people with your posts and we’re not gonna call you out on it.

“I have read some Hoppe and Rothbard, and some other stuff which I don’t need to list to have cridibiltiy with you.”

Last time you claimed to be aware of Rothbard’s arguments Kinsella and I both schooled you on how completely off you were. You seem to like pulling little quotes from them out of context in order to twist them into something different.

“Hoppe bases his fundamental position on property rights and contracts on Rothbard. Got it.”

No, Hoppe argues his point all the way down to the epistemological foundations, and while reaching pretty much the same conclusions as Rothbard he has his own justification for it called the a priori of argumentation. So you don’t have it. You don’t because you won’t click on the damn link I put in my post.

“Unlike you, I actually try to understand what I’m talking about before I express my opinions.”

Hahaha wow it really is true. Every criticism that a charlatan deserves is one that he launches at everyone else.

“So you you think he is right?”

Yes, I’ve never read anything from Hoppe I strongly disagree with. There have been little details that I question but I generally agree with him because we are both rationalists. He is basically the only political philosopher I have read that is actually familiar with the method of proof that logicians and mathematicians use.

“Is he the final authority on property rights?”

No and that is an incredibly stupid question to ask me. I think he is right because he convinced me with sound arguments. I don’t just decide to call someone an authority and assume everything he says is justified. It sounds as though you can only imagine thinking someone is right because they are considered an authority (for example, your constant appeals to positive law). That does not surprise me at all.

You don’t know anything about Hoppe’s property theory. If you did you wouldn’t waste time presenting something he already refuted without at least mentioning his refutation and attempting to refute that yourself. He has directly addressed everything you have ever said here about property theories.

NAPpy June 27, 2011 at 8:26 pm

Sweatervest,

Does the following make sense to you as a summary of the anti-IP position:

1. We own ourselves and our property
2. We do anything we want with ourselves and our property but a rational actor voluntarily limits his actions to the Non-Agression Principle.
3. Violations of the NAP may be defended against using force
3. Property is the legal right to scarce, rivalrous resources
4. Stealing property violates the NAP and may be defended against using force
5. Intellectual property like books and music are not scarce or rivalrous, therefore copying does not violate the NAP, and may not be defended against using force

Thanks

Stranger June 27, 2011 at 7:21 pm

So Kinsella, after realizing that he was dead wrong on property rights, has switched tactics in his promotion of communism: he is now employing fallacy 11, pretending that IP is a rip-off of consumers.

Stephan Kinsella June 27, 2011 at 9:16 pm

IP is also a rip-off of competitors. It is anticompetitive. That is its raison d’etre.

Wildberry June 28, 2011 at 11:58 am

@Stephan Kinsella June 27, 2011 at 9:31 pm

I have challenged the appropriateness of the “veto” concept you are employing here. I think this misstates what the a priori status of property right are and how they operate.

A copyright or patent holder can in fact veto others’ uses of their own property. There is no reason to object to describing this as a veto.

It is dishonest for you to continue to use this ridiculous use of “veto”, for reasons I have presented twice now. Yet you continue to insist that your assumed conclusion is legitimate without responding to my complaint.

Here is a third time: The operation of a veto is as follows: some proposal is placed before someone with veto power, and that person either approves by signing, or disapproves by use of veto powers.

In order for that to be relevant here, you would have to be saying that someone makes a proposal to someone with the power to decide yes or no. In the context of copyrights, are you saying that is the way it all works; infringers don’t infringe until the present their proposed infringement to the copyright holder, who then either approves or “vetoes”.

You pursue this fallacy in order to imply that the copyright holder is exercising conscious discretion over the use of someone else’s paper and ink, which is FALSE.

The use in question involves the book, in possession of a buyer, who acknowledges it is the was acquired from the author (copyright holder) with limitations of use attached to that transfer. That is the scenario. It is analogous to the operation of a servitude, as you have already freely admitted, to the extent that you have written this article about what has “recently occurred to you” concerning the similarity of the operation of servitudes and IP rights.
You admonished me for what you called dishonesty. Continued use of “veto” is dishonest, unless you can justify the use of the term against my objections above. It’s that simple.

You are saying that other’s have unlimited property rights , and AFTER THE FACT, IP comes along and establishes a veto power against the other’s rights? What a bizarre way of trying to look at property rights.
That is equivalent to saying that you have a bat, and that because you didn’t voluntarily agree to limit the use of your bat, you have the unlimited rights of use to bash my head. Unless I have the power to veto your use, you would otherwise be free to use it however you wish, i.e. to bash my head.

And… you make the exact argument I have already predicted and countered. Sad.

Which is what? Where is the counter? Where is the prediction?

As I already explained above, property rights are not a “veto power”. They are a LIMITED right of exclusive use and possession.

Right, that is why IP rights are invalid.

Why, because they are a veto power (false), or because they are treated as property, consistent with how all other property is treated? (true)

Without any prior agreement, contract, or any other device, when you acquire a bat, your rights are already, automatically limited to uses which do not violate the rights of others.

No. The rights are not limited. It’s actions that are limited. Not property rights.

As I have said, rights to property include rights of exclusive use. Those rights can be, and are, limited by the rights of others. This is NAP.

The same action can be limited in one context and not another. So limiting actions is not sufficient. We must specify which acts in what context are limited. The context is the universe of rights held by all individuals in the use of their own property. When and where the exclusive “right of use” (to volitionally act in a particular way with one’s property) conflicts with the exclusive rights of another, those rights of use are limited to those uses which do not infringe upon the rights of others.

If you are making a distinction between what I just said, and what you mean here, what is it?

Once created, a servitude is nothing like a contractual agreement, since it is in the realm of property law.

This is irrelevant as it does not help get you to third parties.

To make this “irrelevancy” claim good, you have to show that a servitude does not operate on “third parties” (a party who was not an owner of the burdened estate prior to the creation of the servitude). Can you do that?

Among other errors, you continually refer to a “third party” as someone not privy to a contract. A contract is between two parties, but a servitude is created by the OWNER of an estate, and it burdens HIS OWN ESTATE. If he sells it to a “third party” meaning someone who is a BFP (there is no “third” person), the servitude runs with the land.

Who may enforce the failure of an estate owner to comply with the limitations imposed by servitude? It is anyone who benefits from the limitation. There is no privity involved or required.

The operation of contract law is between parties, so enforcement is against those human parties in privity.

The operation of property law concerns the rights of possession, use and transfer of PROPERTY, so enforcement is against ANYONE who possesses uses or transfers that property. Privity is irrelevant.

I have written this without having read your exercise below. Let’s see if I’ve already caught your error:

Consider: B and A are neighbors. B gets A to agree to an easement (negative servitude) that prohibits A from disclosing that there is oil under his land. If A does this, then C and D can raise the price they will charge to B who wants to buy them out at a cheap price. So A is supposed to drill for oil only at night. Not during the day.

Now, contrary to the easement, A drills for oil on a bright sunny day. Noticing this, C and D realize there is oil here and they now refuse to sell at a cheap price to B.

Now, A may be liable to B. He may have breached the easement/contract. But are C and D to be prohibited from using information they now have? Did they breach the easement? No.

No, I haven’t. You are full of surprises.

You now introduce a new error; your analysis of “touch and concern”. You object on the basis of privity (not a criteria for enforcement of servitudes) and argue on the basis of touch and concern (which IS a requirement for a servitude to run with the land). Clever.

As you may recall from your property law class, in order for a burden or benefit to run with the land, it must “touch and concern” the land. Drilling for oil may be a proper subject of a servitude; “disclosing that there is oil” is not. This is an act (refrain from acting to disclose) being agreed to by A. A’s conduct does not touch or concern the land. While the use of mineral rights certainly would be such a touch and concern, controlling the conduct of A certainly is not. A’s conduct, a human, does not “run with the land” which is, well… land. After A is dead, the land will still exist, so A’s conduct cannot, obviously, run with the land.

So your example is useless relative to the operation of servitudes.

Let’s move to your conclusions, based on this irrelevant exercise in CONTRACT law, not PROPERTY law:

A may be liable to B for breach of confidentiality secured by contract. This is a trade secret problem, which has not been raised by anyone here. It is an answer to nothing being discussed or proposed by me, or anyone else on this tread.

As you know full well, (I have to believe) C or D are under no obligation to refrain from using information they obtained through proper means.

You cannot logically use an irrelevant argument to support an unrelated conclusion; non sequitur.

The analogy to copyrights is this: A writes a book; Deadwood. It is his property. He creates a servitude on his property, Deadwood, limiting its use, no future owner may copy the book. Deadwood is the “burdened estate”. He sells it to B with notice of the limitation on use. B agrees, and B sells the book to C. C is bound even though he has not made an agreement with A.

Well there is a reason the law applies servitudes and easements to real property: then third parties can be on notice. Not so easy for movable objects.

So, are you now arguing that when a person obtains a book, they are confused about whether they are the author or not? There is no way for an innocent buyer in a bookstore to tell which books he wrote and which he didn’t?

Property rights transfer with transfer of title. We are discussing the problem of what happens when an innocent BFP acquires property with no notice of a limitation of rights to use that property. Servitudes establish rules for dealing with that problem in the context of land transfers. IP establishes rules for dealing with that problem in the context of original works of authorship, the subject matter of the copyright variety of IP.

Humans of normal capacity are capable of determining if they have authored a given book. Humans are also aware of the laws that exist, which includes speed limits, criminal laws, and copyrights. All that is required to receive notice is a “reasonable person of average intelligence”. What kind of person are you making your arguments for? Are you saying that copyrights are unfair to the “unreasonable person” and therefore are unfair for everyone?

It is not obvious that C is “bound”. In any case, even if A finds C has his book and wants it back, fine, but that doesn’t mean C can’t use information he discovered in the meantime. And it surely doesn’t mean that D and E, whom C told the information to, can’t use the information.

That is true, and would be really persuasive if I disagreed with this. Ideas are fee. Information gained by proper means can be freely used and exchanged. Even copyrighted materials can be used and shared within the broad provisos of the Fair Use doctrine. Copyrighted material that has run its term is completely free. So your entire point here is irrelevant. Nothing you imply here is prohibited by copyrights.

The burden “runs with the book”.

But it does not run with information.

And so when all is said and done, you run to the refuge of your most cherished equivocation; “Ideas are free, IP is ideas, therefore IP is wrong”. Transparently false.

Wildberry June 28, 2011 at 12:09 pm

@Stephan Kinsella June 27, 2011 at 9:31 pm

Sorry, I screwed up the formatting: this should be easier to read.

I have challenged the appropriateness of the “veto” concept you are employing here. I think this misstates what the a priori status of property right are and how they operate.

A copyright or patent holder can in fact veto others’ uses of their own property. There is no reason to object to describing this as a veto.

It is dishonest for you to continue to use this ridiculous use of “veto”, for reasons I have presented twice now. Yet you continue to insist that your assumed conclusion is legitimate without responding to my complaint.

Here is a third time: The operation of a veto is as follows: some proposal is placed before someone with veto power, and that person either approves by signing, or disapproves by use of veto powers.

In order for that to be relevant here, you would have to be saying that someone makes a proposal to someone with the power to decide yes or no. In the context of copyrights, are you saying that is the way it all works; infringers don’t infringe until the present their proposed infringement to the copyright holder, who then either approves or “vetoes”.

You pursue this fallacy in order to imply that the copyright holder is exercising conscious discretion over the use of someone else’s paper and ink, which is FALSE.

The use in question involves the book, in possession of a buyer, who acknowledges it is the was acquired from the author (copyright holder) with limitations of use attached to that transfer. That is the scenario. It is analogous to the operation of a servitude, as you have already freely admitted, to the extent that you have written this article about what has “recently occurred to you” concerning the similarity of the operation of servitudes and IP rights.
You admonished me for what you called dishonesty. Continued use of “veto” is dishonest, unless you can justify the use of the term against my objections above. It’s that simple.

You are saying that other’s have unlimited property rights , and AFTER THE FACT, IP comes along and establishes a veto power against the other’s rights? What a bizarre way of trying to look at property rights.
That is equivalent to saying that you have a bat, and that because you didn’t voluntarily agree to limit the use of your bat, you have the unlimited rights of use to bash my head. Unless I have the power to veto your use, you would otherwise be free to use it however you wish, i.e. to bash my head.

And… you make the exact argument I have already predicted and countered. Sad.

Which is what? Where is the counter? Where is the prediction?

As I already explained above, property rights are not a “veto power”. They are a LIMITED right of exclusive use and possession.

Right, that is why IP rights are invalid.

Why, because they are a veto power (false), or because they are treated as property, consistent with how all other property is treated? (true)

Without any prior agreement, contract, or any other device, when you acquire a bat, your rights are already, automatically limited to uses which do not violate the rights of others.

No. The rights are not limited. It’s actions that are limited. Not property rights.

As I have said, rights to property include rights of exclusive use. Those rights can be, and are, limited by the rights of others. This is NAP.

The same action can be limited in one context and not another. So limiting actions is not sufficient. We must specify which acts in what context are limited. The context is the universe of rights held by all individuals in the use of their own property. When and where the exclusive “right of use” (to volitionally act in a particular way with one’s property) conflicts with the exclusive rights of another, those rights of use are limited to those uses which do not infringe upon the rights of others.

If you are making a distinction between what I just said, and what you mean here, what is it?

Once created, a servitude is nothing like a contractual agreement, since it is in the realm of property law.

This is irrelevant as it does not help get you to third parties.

To make this “irrelevancy” claim good, you have to show that a servitude does not operate on “third parties” (a party who was not an owner of the burdened estate prior to the creation of the servitude). Can you do that?

Among other errors, you continually refer to a “third party” as someone not privy to a contract. A contract is between two parties, but a servitude is created by the OWNER of an estate, and it burdens HIS OWN ESTATE. If he sells it to a “third party” meaning someone who is a BFP (there is no “third” person), the servitude runs with the land.

Who may enforce the failure of an estate owner to comply with the limitations imposed by servitude? It is anyone who benefits from the limitation. There is no privity involved or required.

The operation of contract law is between parties, so enforcement is against those human parties in privity.

The operation of property law concerns the rights of possession, use and transfer of PROPERTY, so enforcement is against ANYONE who possesses uses or transfers that property. Privity is irrelevant.

I have written this without having read your exercise below. Let’s see if I’ve already caught your error:

Consider: B and A are neighbors. B gets A to agree to an easement (negative servitude) that prohibits A from disclosing that there is oil under his land. If A does this, then C and D can raise the price they will charge to B who wants to buy them out at a cheap price. So A is supposed to drill for oil only at night. Not during the day.

Now, contrary to the easement, A drills for oil on a bright sunny day. Noticing this, C and D realize there is oil here and they now refuse to sell at a cheap price to B.

Now, A may be liable to B. He may have breached the easement/contract. But are C and D to be prohibited from using information they now have? Did they breach the easement? No.

No, I haven’t. You are full of surprises.

You now introduce a new error; your analysis of “touch and concern”. You object on the basis of privity (not a criteria for enforcement of servitudes) and argue on the basis of touch and concern (which IS a requirement for a servitude to run with the land). Clever.

As you may recall from your property law class, in order for a burden or benefit to run with the land, it must “touch and concern” the land. Drilling for oil may be a proper subject of a servitude; “disclosing that there is oil” is not. This is an act (refrain from acting to disclose) being agreed to by A. A’s conduct does not touch or concern the land. While the use of mineral rights certainly would be such a touch and concern, controlling the conduct of A certainly is not. A’s conduct, a human, does not “run with the land” which is, well… land. After A is dead, the land will still exist, so A’s conduct cannot, obviously, run with the land.

So your example is useless relative to the operation of servitudes.

Let’s move to your conclusions, based on this irrelevant exercise in CONTRACT law, not PROPERTY law:

A may be liable to B for breach of confidentiality secured by contract. This is a trade secret problem, which has not been raised by anyone here. It is an answer to nothing being discussed or proposed by me, or anyone else on this tread.

As you know full well, (I have to believe) C or D are under no obligation to refrain from using information they obtained through proper means.

You cannot logically use an irrelevant argument to support an unrelated conclusion; non sequitur.

The analogy to copyrights is this: A writes a book; Deadwood. It is his property. He creates a servitude on his property, Deadwood, limiting its use, no future owner may copy the book. Deadwood is the “burdened estate”. He sells it to B with notice of the limitation on use. B agrees, and B sells the book to C. C is bound even though he has not made an agreement with A.

Well there is a reason the law applies servitudes and easements to real property: then third parties can be on notice. Not so easy for movable objects.

So, are you now arguing that when a person obtains a book, they are confused about whether they are the author or not? There is no way for an innocent buyer in a bookstore to tell which books he wrote and which he didn’t?

Property rights transfer with transfer of title. We are discussing the problem of what happens when an innocent BFP acquires property with no notice of a limitation of rights to use that property. Servitudes establish rules for dealing with that problem in the context of land transfers. IP establishes rules for dealing with that problem in the context of original works of authorship, the subject matter of the copyright variety of IP.

Humans of normal capacity are capable of determining if they have authored a given book. Humans are also aware of the laws that exist, which includes speed limits, criminal laws, and copyrights. All that is required to receive notice is a “reasonable person of average intelligence”. What kind of person are you making your arguments for? Are you saying that copyrights are unfair to the “unreasonable person” and therefore are unfair for everyone?

It is not obvious that C is “bound”. In any case, even if A finds C has his book and wants it back, fine, but that doesn’t mean C can’t use information he discovered in the meantime. And it surely doesn’t mean that D and E, whom C told the information to, can’t use the information.

That is true, and would be really persuasive if I disagreed with this. Ideas are fee. Information gained by proper means can be freely used and exchanged. Even copyrighted materials can be used and shared within the broad provisos of the Fair Use doctrine. Copyrighted material that has run its term is completely free. So your entire point here is irrelevant. Nothing you imply here is prohibited by copyrights.

The burden “runs with the book”.

But it does not run with information.

And so when all is said and done, you run to the refuge of your most cherished equivocation; “Ideas are free, IP is ideas, therefore IP is wrong”. Transparently false.

Stephan Kinsella June 28, 2011 at 12:48 pm

THis post is too dishonest and confused for me to bother replying to. I’ve made my case, and it is clear. You continue to prevaricate and thrash around. But I’ll say this: your objection to the word “veto” to describe the rights of the IP holder, the nature of a negative servitude, is one of the stupidest things I can remember coming across in recent memory. It reminds me of this quote from Billy Madison:

what you’ve just said is one of the most insanely idiotic things I have ever heard. At no point in your rambling, incoherent response were you even close to anything that could be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.”

Peter Surda June 28, 2011 at 1:28 pm

Wildberry is a specialist in confusing everyone, ignoring replies and subsequently proclaiming himself the victor.

Wildberry June 28, 2011 at 2:09 pm

This response, and the attitude displayed here by you and your pupil, is the most childish, pathetic display of intellectual dishonesty I have ever encountered.

To quote Billy Madison’s response, “A simple ‘Wrong’ would have done just fine, but OK.”

Even on this rather trivial point of veto, you cannot bring yourself to admit the objection is valid, or show why it is not.

I did not expect you to roll over peacefully, as you have a decade or more invested in this sleight of hand shtick of justifying your anti-IP position with equivocation, misrepresentation, and non-sequitur.

I need nothing from you. There is no victory here. You are simply someone with his hand in the cookie jar who has been found out. I leave you to your misery.

Kid Salami June 28, 2011 at 1:11 pm

For the “touch and concern” criterion, which allows something to “run with the land”, for an engineering drawing then you would have to argue that the “no copies” provision touches and concerns the drawing itself in some sense.

It’s not clear that is does. A servitude preventing you using a property for commercial purposes, say, prevents you from transforming or adding to the object and turning it into something with new and undesirable properties. But can a run with the land servitude prevent people from taking photos of the land? I would doubt this, so you might argue this means you couldn’t prevent copying either. This might be an answer to the questions of why different rules for land and hard drives which I would have to accept does not make a contradiction.

Wildberry June 28, 2011 at 4:28 pm

@ Kid Salami June 28, 2011 at 1:11 pm

For the “touch and concern” criterion, which allows something to “run with the land”, for an engineering drawing then you would have to argue that the “no copies” provision touches and concerns the drawing itself in some sense.

Yes, I agree.

It’s not clear that is does. A servitude preventing you using a property for commercial purposes, say, prevents you from transforming or adding to the object and turning it into something with new and undesirable properties. But can a run with the land servitude prevent people from taking photos of the land? I would doubt this, so you might argue this means you couldn’t prevent copying either. This might be an answer to the questions of why different rules for land and hard drives which I would have to accept does not make a contradiction.

“Touch and concern is a difficult rule to apply, and it was therefore clever for Kinsella to raise it as a defense. It is necessary to spot the distinction in order to spot his error.

In property law, it touches the realm of economics, because one way of resolving whether a certain covenant runs is to try to determine what decision the present land owners would reach in a negotiation free of transaction costs. This should sound familiar from the Friedman book.

Negative covenants, (an agreement to create a burden and benefit that may or may not run with the land) not to do a physical act with or on that land, touch and concern the land, and therefore run.

A covenant “not to compete” touches the land to the extent that the use of the burdened land is limited to non-competitive uses of the land. To the extent “competition” does not involve use of the burdened land, it does not run. A covenant can control the personal conduct of the owner, but a servitude, (which runs) only touches and concerns what the owner can do with the land to “compete”. This doctrine is what limits the scope of what kinds of limitations run.

If it does not run with the land, (covenant) it is interpreted as a contract, and requires privity (horizontal or vertical) to enforce. If it does run, (servitude) it does not depend upon privity to enforce. Anyone who accepts title to the burdened property accepts the burden described in the servitude.

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. 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.

An owner of a drawing would be interested securing his interests in copies, because they have the same utility as the original. A land owner is not concerned with photographic copies, because they do not have the same utility as the land itself. This is why photocopies of drawings touch and concern the original property, while a photocopy of land does not.

Therefore, a covenant “not to copy” would run with the drawing to the extent that the drawing must be used to make the copy.

This leads to the question of what is a “copy”, which IP law, specifically copyrights, specializes in. Property law in land does not, because you cannot copy land. Copying chattel is a little more complicated, but in general, it is not an issue because the means to copy and the copy are separate things. When you sell a mass produced copy of a thing like a car, you are not also selling the means of production; the factory.

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.

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.

If you look at the economics of the transaction to see if the covenant “touches and concerns” the burdened property, you could look to what the actors would negotiate.

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. A transaction that transferred the right to copy would therefore be priced high, as evidenced by the price paid by a publisher for a popular book.

The buyer is in no position to bargain, since he cannot make a copy without the original. Likewise, he is not likely to pay the price of a publisher just to read a book. Therefore the parties are likely to negotiate a covenant where the means are acquired with a limitation of use, and the buyer is likely to accept the limitation if the value of possession is high and the price is low. In other words, if the benefits are high, and the burden is low, then the parties are likely to support the covenant. Therefore it touches and concerns the property itself, and runs with the property, and becomes a servitude.

As an aside, this is how I interpret the often-quoted-here comments by Mises on copyrights. 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. Kinsella has never addressed this point in his arguments to my knowledge, and consistently ignores challenges to do so.

Kid Salami June 30, 2011 at 2:45 am

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. 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.

An owner of a drawing would be interested securing his interests in copies, because they have the same utility as the original. A land owner is not concerned with photographic copies, because they do not have the same utility as the land itself. This is why photocopies of drawings touch and concern the original property, while a photocopy of land does not.

I suspect that this case can be made, but I think it is deceptively complex. But my original point comes down to this: you say “touches and concerns the economic interests of the thing itself.” as if it is the same as “touches and concerns …the thing itself.” Like I say, I suspect the case for this can be made, but it is not obvious.

I was really just pointing out a good and interesting answer to my question, one which i admit I hadn’t thought of in advance. If there was actual analysis taking place here (instead of posturing), this would have already been arrived at some time ago.

Wildberry July 1, 2011 at 3:44 pm

@ Kid Salami June 30, 2011 at 2:45 am
I’ve been meaning to get back to you on this one, but couldn’t until now.

Yes, few people here are really engaged in understanding the principles in operation with IP.

They just “know” it is wrong, and as you say, posture around that conclusion. The “If you ain’t with us, you’re again’ us” mentality is laughable, sometimes.

As usual, you raise interesting points. What is the essential distinction between IP and all other property? Why does this distinction make the analogy to servitude valid? How is “economic right” to property, and “title to property” related?

Here is my take:

One aspect of all property is the economic benefit of owning it, where to “own” it means exclusive use and possession. This is the essence of the doctrine of private property rights.

One thing in common among all property is the economic interest the owner can exploit by securing this exclusive title to it. It is only when this “property monopoly” is secured that the owner can negotiate with others for exchange value. Without exclusivity, the seller has no ability to withhold it from a willing buyer who offers too little to accomplish the trade.

A land owner starts out with “unlimited” (not limited by anything that everyone and everything else is already limited by) economic rights in his land. If he sells off his mineral rights, he still owns the rest and can sell it, keep it, abandon it, or give it away. However, no one can enjoy the economic benefits of this land without dealing with the owner. Any economic right that is alienated from the original property is no longer possessed by the original owner.
So when you say:

But my original point comes down to this: you say “touches and concerns the economic interests of the thing itself.” as if it is the same as “touches and concerns …the thing itself.” Like I say, I suspect the case for this can be made, but it is not obvious.

I see it as pretty straight forward. An economic right in property cannot exist unless in “touches and concerns” the property itself. Otherwise, the “economic benefit” being identified would derive from some other means. If “ownership” means “exclusive use” then trading property with buyers is one of those uses. One right of owning property is choosing not to own it. That choice includes imposing limitations on the conveyed title through servitude.

To the extent that this trade is an economic activity within the meaning of praxeology, then such activity is an “economic right” of owning property, and derives from the natural monopoly associated with the very concept of “private property rights”.

This is why it was a triumph to get Kinsella to admit that an author who has possession of a manuscript before it is published “owns” the manuscript. Since all subsequent copies of that manuscript, in any form, cannot exist except by some causal connection to the original manuscript, the problem becomes one of finding an exception to the concept of private property.

Since private property implies not only use and control, but by extension exclusive economic rights, any offer to willing buyers are subject to the normal operation of property rights and rules. This is why the legal concept of servitudes is so powerful. It is the perfect analogy to property rights in real property to explain the operation of IP as a property right.

In order for Kinsella to arrive at his conclusion, that once the book enters the market through disclosure the authors rights are terminated, he must show a theory for how that can occur that does not contradict the normal rules of property rights.

The only way he can to that is to equivocate along the “ideas are free” line of reasoning, and say that “IP” is “ideas” and “ideas are free” and non-scarce, etc. This is a fallacy, and is explicitly denied in the statute itself.

Once this is understood, it is easy to see why he avoids the externality issue raised by Mises. He cannot rebut Mises’s analysis of producing for external economies without contradicting fundamental principles of private property, one of the sacred principles of Libertarian thought.

He cannot show that producing for external markets would have no effect on an actor’s decision to allocate resources to the means of producing intellectual products.

His entire edifice to Ancap opposition to IP rests simply on the assertion that “We have IP because we have the State. Hate the State”.

It is a sham.

Peter Surda July 2, 2011 at 3:06 am

Wildberry,

stop lying. Your lies have been refuted numerous times.

One thing in common among all property is the economic interest the owner can exploit by securing this exclusive title to it.

Blatant lie. Property has nothing to do with “economic interests”. “Economic interests” of all goods reach far beyond the scope of the rights, until infinity. Furthermore, if you base your argument on this, you fail to reach the goal of property rights, which is to resolve conflicts. Economic interests overlap. It is precisely because they overlap that a system of property rights is desirable and was instituted in the first place. Your argument essentially negates the concept of property rights.

Without exclusivity, the seller has no ability to withhold it from a willing buyer who offers too little to accomplish the trade.

Another blatant lie. Exclusivity is neither a necessary condition for the ability to trade, nor does it correspond to any of the theories or actual laws. If it did, all competition would be illegal.

This is why it was a triumph to get Kinsella to admit that an author who has possession of a manuscript before it is published “owns” the manuscript.

Since the author also owns the manuscript after publishing it, your “triumph” is reduced to irrelevance.

…once the book enters the market through disclosure the authors rights are terminated…

There is no such thing. The rights of the author are exactly the same regardless of whether disclosure happens or not.

Confront your lies you coward.

Wildberry July 2, 2011 at 1:00 pm

Surda:

Do you think I would voluntarily subject myself to more of this childish abuse? Just because you repeat “lie” over and over does not mean you have said anything.

Blatant lie. Property has nothing to do with “economic interests”. “Economic interests” of all goods reach far beyond the scope of the rights, until infinity.

If you wanted to prove the case, you would first need to prove falsehood, and then intent to deceive based upon knowledge if the falsehood. You have done neither.

You say: ““Economic interests” of all goods reach far beyond the scope of the rights, until infinity”

I’m not sure I actually understand what you mean, but I’m guessing that a when a good is introduced into the market and title transfers, that property can continue to turn over and over, from buyer to seller to buyer, etc. into infinity.

Or perhaps you mean that until property rights are assigned, everyone has competing economic interests in property, so they can’t exist until ownership of property is established?

First, goods may “turnover” from seller to buyer for the life of a good, it doesn’t stretch into infinity. Each time it does, the economic interests, and rights to those interests, follow the title being transferred.

If you assume that property rights do not yet exist, so “economic” rights cannot be determined until property rights are assigned, and this uncertainty stretches into infinity, so? Once property ownership is assigned, so are the economic rights associated with that ownership.

Each owner that alienates his property also alienates his specific economic interests and rights encompassed by title to them.

Obviously then, it is false to claim that “Property has nothing to do with “economic interests”, since they are, as you like to say, simply different interpretations of the same phenomena; i.e. privately owned property.

Now, do you actually not know this is false? Because if you do, that would make this a lie. Far be it from me to judge you in this way; you already know the truth. You tell me.

Peter Surda July 2, 2011 at 2:33 pm

Wildberry,

If you wanted to prove the case, you would first need to prove falsehood, and then intent to deceive based upon knowledge if the falsehood. You have done neither.

On the contrary. I have refuted your claims several times. Instead of confronting the refutations, you repeat your claims. Furthermore, occasionally you forget that you’re pretending and admit that you actually agree with some of the claims you otherwise oppose. That makes it a lie.

I’m not sure I actually understand what you mean, but I’m guessing that a when a good is introduced into the market and title transfers, that property can continue to turn over and over, from buyer to seller to buyer, etc. into infinity.

I already explained this several times in the past. Your “guess” is false.

Or perhaps you mean that until property rights are assigned, everyone has competing economic interests in property, so they can’t exist until ownership of property is established?

No.

Obviously then, it is false to claim that “Property has nothing to do with “economic interests”, since they are, as you like to say, simply different interpretations of the same phenomena; i.e. privately owned property.

If this was true, it would be impossible to have an economic interest in a good without owning it. This is something so obviously false that I think providing a counterexample is unnecessary, but will make one nevertheless: I have an economic interest in your body, because unless you shut up or confront me, you’re wasting my time. Yet I obviously do not own your body. Your argument is hereby refuted.

Now, do you actually not know this is false?

You are false.

Wildberry July 3, 2011 at 11:53 am

If I made two guesses and didn’t get what you’re talking about, what is the problem, you think? Should I have taken more guesses? Not only have you refuted nothing, you can’t even construct an intelligible thought.

Is it possible to own property and not own the economic interests to it?

Is it possible to have an economic interest that you don’t own?

This entire discussion has been about the alienability of bundled property rights, which I dare say you either deny as a possibility, or don’t understand, or both.

Peter Surda July 3, 2011 at 6:01 pm

Wildberry,

If I made two guesses and didn’t get what you’re talking about, what is the problem, you think?

The problem is that you’re a fraud. I already explained and reformulated it several times. Reread what I wrote, I’m not going to repeat myself again.

Is it possible to own property and not own the economic interests to it?

You cannot own “economic interests”.

Is it possible to have an economic interest that you don’t own?

See above.

This entire discussion has been about the alienability of bundled property rights, which I dare say you either deny as a possibility, or don’t understand, or both.

The debate is about clarity versus vagueness. You represent the latter.

Wildberry July 3, 2011 at 11:01 pm

@Peter Surda July 3, 2011 at 6:01 pm

The problem is that you’re a fraud. I already explained and reformulated it several times. Reread what I wrote, I’m not going to repeat myself again.

You explained what, where? This is an Easter egg hunt now?

you cannot own “economic interests”.

This is mrely an assertion. Why not and what do you mean?

You can own property, and I said that the “economic interest” is just another away of describing “exclusive rights of ownership” of private property. You can own private property, so what is your objection?

This entire discussion has been about the alienability of bundled property rights, which I dare say you either deny as a possibility, or don’t understand, or both.

The debate is about clarity versus vagueness. You represent the latter.

Vagueness can be remidied, but I think I clarified. So your answer is a) you deny the possibility or b) you don’t understand it or c) both or d) another option.

I know you are not one to let a question go unanswered, so which door do you pick?

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/

Peter Surda July 4, 2011 at 3:57 am

Wildberry,

You explained what, where? This is an Easter egg hunt now?

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 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.

Also

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?

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 :

Without IP, the proportion of “external markets” of your output is not 100%, and with IP it is not 0%.

You’re a fraud, Wildberry.

This is mrely an assertion. Why not and what do you mean?

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.

You can own property, and I said that the “economic interest” is just another away of describing “exclusive rights of ownership” of private property. You can own private property, so what is your objection?

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.

Vagueness can be remidied, but I think I clarified.

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.

So your answer is a) you deny the possibility or b) you don’t understand it or c) both or d) another option.

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.

Wildberry July 4, 2011 at 8:42 am

@Stephan Kinsella July 3, 2011 at 11:12 pm
@Peter Surda July 4, 2011 at 3:57 am

See my response here:

http://blog.mises.org/17398/intellectual-property-rights-as-negative-servitudes/comment-page-1/#comment-791226

Peter Surda July 4, 2011 at 9:21 am

Wildberry,

you utterly failed to address anything what I said. You did not address the problem of using causality to justify your position, but only as long as your statements can remain vague. You also did not address the more specific problem of servitudes jumping to copies (hint: they do not, and that screws up your whole argument). Furthermore, you did not address the problem that you ascribe to inventions and artistic creations unique economic features that they evidently do not have.

You misrepresent my words, then ask for a clarification, and when I provide one, you ignore it.

There is no nice way of describing your behaviour, so let me tell you this: http://www.youtube.com/watch?v=j8uefBUOfgA

nate-m July 4, 2011 at 10:16 am

There is no nice way of describing your behaviour, so let me tell you this: http://www.youtube.com/watch?v=j8uefBUOfgA

Peter! You should be ashamed!

Don’t know that video clip violates the important economic interests of these movies?
http://www.rottentomatoes.com/search/?search=penguins&sitesearch=rt
It makes a mockery of 3D animated penguin flicks everywhere!

If only the magical producers of these important economic interests were allowed to patent their intellect then this sort of economic interest theft can be stopped!

Wildberry June 29, 2011 at 10:49 am

Stephan Kinsella wrote:

Now the parallels between patent and copyright and negative servitudes should be obvious.

I agree there are parallels, yet Kinsella finds these parallels support his anti-IP position, where I find the opposite.

It occurred to me today that there is another problem for Kinsella with servitudes.

A servitude is a type of covenant; not all covenants run with the property but servitudes do. A covenant is a form of promise; a promise to do or not do some act that touches and concerns the subject property.

In property law, a servitude runs with the land. This means that as the property changes hands, the new owner is bound by the promise.

Kinsella also adheres to the Rothbardian “Title Transfer Theory of Contracts”, one tenet of which, as I understand it, is that human will in inalienable. This means that promises are not enforceable, and that failure to perform on a promise merely triggers a previously negotiated “transfer of title” in the form of a penalty payment, for example.

Kinsella appears to hold that a servitude is a valid device in relation to “real” property, or land and movable property, as he likes to refer to it, but is invalid when it comes to IP.

Yet this seems to contradict the TTTC. If promises are unenforceable, how then can a servitude on land operate? How would one enforce the breach of promise if a new landowner refused to perform on the promise of the servitude?

I suppose one answer might be that servitudes may be established with a penalty clause as part of the deal. Would that mean that a buyer would have to not only pay the purchase price, but secure a bond in some way to insure that if he defaults, he could pay up?

What if “paying up” was not an adequate remedy? Is there such a thing as injunctions and specific performance in this world-view?

Also, one wonders how a servitude, say passed down over several generations, might deal with facts such as inflation, destruction of original conditions, or other specific facts which were not contemplated at the time of formation?

Are all of these issues merely “technical problems” that would be “worked out” in the future land of Ancap entrepreneurs?

I would be interested to see proposals for how this would work, including an analysis of what impact these theories would have on the transaction costs of doing business in the transfer of property that was burdened with a servitude.

I seems to me that imposing TTTC on servitudes woud make the transaction costs so high that they would not likely be viable. In such a case one could only buy land that is unburdened by servitudes, yet the impact of this is to reduce the rights of property holders to impose conditions upon the sale of their own private property, or for adjacent land owners to negotiate limitations of use, for lack of a legal device to enforce those agreements.

In the alternative, some new legal rules would have to be developed to deal with the high transaction costs under TTTC. One solution would be to make the rules simple and rigid, so that facts would not have to be considered, and judges could simply “rule from the bench”. That appears to have totalitarian overtones.

Wildberry July 4, 2011 at 8:39 am

@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’s assertion that a servitude has nothing to do with property ownership, etc. I’m sure you can explain it to him.

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 in those uses. Those uses describe your economic rights to your private property.

Peter Surda July 4, 2011 at 9:08 am

Wildberry,

I am simply responding to Peter’s assertion that a servitude has nothing to do with property ownership, etc.

Let me untwist the words. Servitude does have to do with “property ownership”, but not in the way you present it. Furthermore, one cannot legally become obligated by being lied to.

Now, the core of your fallacy is actually purely logical and does not have anything to do with the specifics of servitudes or property.

From the fact that a good (original) is covered by servitude, you somehow derive that other goods (copies) are also covered with servitude. I already pointed this out this elementary error several times, which you ignored. It’s like saying that if I have a servitude to cross a piece of land, and the land owner breeds some sheep on the land, then you also gain servitude on land of the subsequent owners of the sheep. That’s just bullshit. From a causal relationship you fraudulently “derive” that there is also a legal one. Merely because you have a servitude on the land, it does not follow that the servitude jumps to the sheep because they ate grass that grew on the land, and from the sheep it jumps to other pieces of land because someone purchased the sheep. Or even better, if someone photographed the sheep on the land, the servitude would jump to the land the photographer owns. It’s a complete fraud. Your attempts at justifying your illogic are pathetic.

The economic rights to a tangible resource are simply a consequence of owning that resource.

Now we’re back to the question of causality. Confront it or shut up.

You have a right to exclude others from “trespass”, or the more proper term for movable goods, from conversion of your privately owned resources in those uses.

The way Austrians use “trespass” is that refers to an alteration of your property (e.g. changing its shape or location). Copying does not, per se, do either. You use the word “trespass” to denote a causal relationship, but refuse to explicitly confirm or reject this.

You’re a fraud, Fraudberry.

Wildberry July 5, 2011 at 10:32 am

You dish up ignorance in such volume, it’s impossible to keep up.

It’s like saying that if I have a servitude to cross a piece of land, and the land owner breeds some sheep on the land, then you also gain servitude on land of the subsequent owners of the sheep. That’s just bullshit.

If you understood what a servitude was and how it operates, you wouldn’t make such an ignorant and nonsensical statement as this. Sheep do not touch and concern the land. They have no relevance to the title or limitations burdening the land.

“The economic rights to a tangible resource are simply a consequence of owning that resource.”

Now we’re back to the question of causality. Confront it or shut up.

You fail to state your objection. Is there something in this statement of mine that you refute?

The way Austrians use “trespass” is that refers to an alteration of your property (e.g. changing its shape or location). Copying does not, per se, do either. You use the word “trespass” to denote a causal relationship, but refuse to explicitly confirm or reject this.

That was your term, which is why I put it in quotes. Trespass does not apply to chattel, but conversion does. You appear to be thinking of “transformation”, but conversion means appropriating the benefit of possession to yourself to the detriment of the rightful owner.

If you possess my watch legally, but do not own it, yet sell it and keep the money, you are guilty of conversion of my property. Get it?

Peter Surda July 5, 2011 at 11:24 am

Widlberry,

You dish up ignorance in such volume, it’s impossible to keep up.

On the contrary, the ignorant one is you, as documented repeatedly.

If you understood what a servitude was and how it operates, you wouldn’t make such an ignorant and nonsensical statement as this.

You are the one who evidently does not understand servitudes.

Sheep do not touch and concern the land.

You are mixing unrelated things. Touch and concern is a requirement rather than the target of the restriction. It does not mean that the servitude jumps to the object that is “touching and concerning”.

When you apply this analogy to copying, it would mean that that if the copy “touches and concerns” the original, then the subsequent owners of the original are prevented from copying. Which, again, has nothing to do with IP, because it applies the copying restrictions to people who are not subsequent owners of the original. You have it all mixed up.

You fail to state your objection.

On the contrary, I stated it repeatedly. The objection is that you are using causality as a sufficient condition for property right claim. Whenever I ask you about this explicitly though, you start backing away. That’s pathetic.

That was your term, which is why I put it in quotes.

I used it since you have failed to provide a term from your framework. Just a while ago, you ran away from a debate when it turned out that you are using circular argument to define what is wrong with copying. So I used the word trespass in order to clarify a different argument you were making, but it looks like you’re pushing it back to the circularity.

Trespass does not apply to chattel, but conversion does.

You are introducing new terms to avoid confronting that we are talking about property rights violations. Since you have to date not explained how copying violates someone’s property rights or what it even means, and your attempts to “prove” that this can be concluded failed, you should concentrate on amending that.

You appear to be thinking of “transformation”, but conversion means appropriating the benefit of possession to yourself to the detriment of the rightful owner.

Please read writings by Kinsella and Hoppe. I am talking about the changing physical integrity of the property (which can in colloqual terms be approximated as displacement (theft) and changing of composition/shape (damage)). For simplicity let’s assume that you agree that such actions, conducted against the wishes of the owner, are violations of property rights. If you do not agree just say and we can continue in a different fork.

Since, however, such a definition of property rights covers all possible actions whatsoever, introducing other rules (e.g. right to work, job, or copying) contradicts them. I said this to you over half a year ago, yet you failed to confront it.

If you possess my watch legally, but do not own it, yet sell it and keep the money, you are guilty of conversion of my property. Get it?

Since it is not necessary to possess an original to create a copy, your pathetic attempts at avoiding confronting your errors are pointless.

Wildberry July 4, 2011 at 9:26 am

@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.

Peter Surda July 4, 2011 at 11:16 am

Wildberry,

But you failed to explain why you think they are separate “units”.

Why are you introducing new vague words into an argument? The inability to coherently determine whether two descriptions refer to the same phenomenon or not was one of your first errors here, you went so far as denying the very elements of logic. If two phenomena can occur independently of each other, they are two distinct phenomena. If it is legal for them to occur independently of each other, than you cannot derive the legal status of one of them by analysing the other. Putting them together, or calling them “one unit” in order to “prove” your point is erroneous.

Where did I say that? Are those my quotes?

Memory loss I see. How about this:

http://blog.mises.org/17345/stallman-an-internet-connectivity-tax-to-compensate-artists-and-authors/comment-page-1/#comment-790725

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.

You refuse to counter the errors in this claim.

Especially unfamiliar is that I’m “Trying to present the problems authors and inventors face as economically unique”, as you say.

See above, you fraud.

As for below, although you were originally attempting to “prove” that IP is somehow equivalent with servitudes, in the end you ended up making circular arguments by having to assume that copying is a violation of rights even when it’s not trespassory, contract-violating or servitude-violating. So your whole attempt is erroneous.

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.

Whether land can or cannot be copied is irrelevant. The right to copy is not a derived from the property rights in the object being photographed. There is no right to “not having your property copied”. Instead, IP proponents fabricate such bullshit to support their claims.

This creates the “unique” property problem.

Since copying is not, per se, a violation of property rights, that’s just a fabrication.

In fact, the entire focus of this discussion has been the SIMILARITIES, between servitudes in land, and the operation of IP through copyrights.

However, you ignore the differences, which point to gaps or outright errors in your arguments.

I am saying the opposite, that technological development does NOT rearrange property rights.

Now you are clearly contradicting yourself. Even assuming that copying would be a violation of property rights, certainly the ability to copy is influenced by the technological progress. If copying of some goods is tedious, expensive and of little economic effect, noone is making the claim that it violates their rights. But as it becomes more feasible and becomes competitive, suddenly people magically start claiming that the illegality of copying also applies to the field they are conducting business with. If copying as such was illegal, then almost no activity whatsoever would be legal.

The fact that books are easily and cheaply reproducible with current technology is creating a problem of enforcing the principle of private property.

Copying, as such, is not a violation of private property. What the technological progress is causing problems with is not private property but business models that are becoming obsolete.

I have repeatedly said that the ease with which something can be reproduced is not relevant to determining the property rights of ownership.

But in that case you cannot use this line of arguing to support your position. The claim that rights are technology-indifferent is must be valid regardless of whether copying is legal or not.

Yet opponents argue the opposite; because the copies cannot be “prevented” then that shows that IP is wrong.

I don’t know anyone who says this. Copying is not, per se, a right violation. You can try to use your wit, property rights and economic position to prevent copying, if you’d like. But you have no claim against third parties who did not violate any of contracts they entered in, nor trespass or steal. Servitudes (if applied the way you present it) would only cover a tiny proportion of copying and still leave vast legal opportunities for copying.

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.

You said (paraphrased form above) that IP is necessary for producers of some types of goods to be motivated to produce. I said it is false. Suddenly you play confused. The point is your argument is false. IP is not necessary to profitably produce any type of good. The only argument you can make is a utilitarian, that somehow it causes better or more goods to be produced. I don’t think you are making that argument, however I disproved that however too, at debates with others.

IP does not establish labor laws.

No, but I’m not arguing that “labour laws” exist in order for me to earn money and otherwise I would be broke.

But if you did sell your labor and someone else got your paycheck, what would that make you?

You cannot sell labour. That’s the labour theory of value. Stop the Marxian nonsense, Stephan refuted that many times over. But assuming it would actually happen that you exerted some labour and this caused someone else receiving money rather than you, and this would be legal, then I would tell you that you have a stupid business plan.

Slaves don’t remain slaves voluntarily.

And stupid businessmen run out of business.

who knows what this means, and why you are saying it?

See above Wildberry. IP is not necessary to earn money for the production of anything, including what you call “intellectual works”, but your whole argument is based on exactly that assumption.

What argument is there in the a priori fact that private ownership of a thing gives you exclusive economic rights to its use?

You are using the word “economic rights” to denote causality, again.

This is not my argument.

So you are not claiming that the copies are an “economic interest” of the creator of the original?

You’re moving in circles.

Wildberry July 5, 2011 at 12:57 am

@Peter Surda July 4, 2011 at 11:16 am

Why are you introducing new vague words into an argument? The inability to coherently determine whether two descriptions refer to the same phenomenon or not was one of your first errors here, you went so far as denying the very elements of logic. If two phenomena can occur independently of each other, they are two distinct phenomena. If it is legal for them to occur independently of each other, than you cannot derive the legal status of one of them by analysing the other. Putting them together, or calling them “one unit” in order to “prove” your point is erroneous.

Unless, of course, they are necessary and sufficient conditions, which is essentially what I am saying. Why, you fail to state, is “ownership of property” and “economic rights to that property” separable?

Where did I say that? Are those my quotes?

Memory loss I see. How about this:
http://blog.mises.org/17345/stallman-an-internet-connectivity-tax-to-compensate-artists-and-authors/comment-page-1/#comment-790725

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.

Your response to this, which you quoted initially is non-responsive to this assertion above, which I stand by. It is nearly a verbatim quote from Mises, as you may recall. If you disagree with his assertion, I think you have a bit of ‘splaining to do.

Especially unfamiliar is that I’m “Trying to present the problems authors and inventors face as economically unique”, as you say.

See above, you fraud.

As I said, I didn’t make that claim, and you call me a fraud?

There is no right to “not having your property copied”. Instead, IP proponents fabricate such bullshit to support their claims.

This is not persuasive. There is no right, unless of course the owner creates a limitation as a condition of transfer, the eh, POINT of this discussion.

Since copying is not, per se, a violation of property rights, that’s just a fabrication.

You mean since you assume your conclusion, it MUST be true?

However, you ignore the differences, which point to gaps or outright errors in your arguments.

Which are?

Now you are clearly contradicting yourself. Even assuming that copying would be a violation of property rights, certainly the ability to copy is influenced by the technological progress. If copying of some goods is tedious, expensive and of little economic effect, noone is making the claim that it violates their rights. But as it becomes more feasible and becomes competitive, suddenly people magically start claiming that the illegality of copying also applies to the field they are conducting business with. If copying as such was illegal, then almost no activity whatsoever would be legal.

What a crock. If technology makes it easier to steal a car, suddenly thieves have new rights to steal cars? Who can take you seriously?

Copying, as such, is not a violation of private property.[ unsupported assertion] What the technological progress is causing problems with is not private property but business models that are becoming obsolete.

Perhaps, but I am not discussing business models, like selling your labor instead of creating IP. Stick with the subject.

But in that case you cannot use this line of arguing to support your position. The claim that rights are technology-indifferent is must be valid regardless of whether copying is legal or not.

It is your assertion, not mine.

Copying is not, per se, a right violation. You can try to use your wit, property rights and economic position to prevent copying, if you’d like. But you have no claim against third parties who did not violate any of contracts they entered in, nor trespass or steal. Servitudes (if applied the way you present it) would only cover a tiny proportion of copying and still leave vast legal opportunities for copying.

Another unsupported assertion that ignores the entire subject of discussion; Brilliant.

You said (paraphrased form above) that IP is necessary for producers of some types of goods to be motivated to produce. I said it is false. Suddenly you play confused. The point is your argument is false. IP is not necessary to profitably produce any type of good. The only argument you can make is a utilitarian, that somehow it causes better or more goods to be produced. I don’t think you are making that argument, however I disproved that however too, at debates with others.

Are you kidding? IP is not required to produce ANY goods, or IP would be responsible for 100% of the GDP. So for you to argue that you earn your living without relying on IP is completely irrelevant. That is what I said.

No, but I’m not arguing that “labour laws” exist in order for me to earn money and otherwise I would be broke.

That’s interesting; you mean you DO rely on Statist labor laws to earn your living?

You cannot sell labour. That’s the labour theory of value. Stop the Marxian nonsense, Stephan refuted that many times over. But assuming it would actually happen that you exerted some labour and this caused someone else receiving money rather than you, and this would be legal, then I would tell you that you have a stupid business plan.

Are you tired, or on drugs? I spend so many hours a day at my desk doing work for my employer, and I get paid. Am I really a Marxist for doing so?

You are getting tiresome. You are not even running in circles, you are completly and utterly lost.

Peter Surda July 5, 2011 at 3:46 am

Wildberry,

Unless, of course, they are necessary and sufficient conditions, which is essentially what I am saying.

The very fact that they can legally occur independently of each other disproves your claim that they are sufficient conditions. You’re assuming something which is clearly false.

Your response to this, which you quoted initially is non-responsive to this assertion above, which I stand by.

You can’t wiggle out of this that easily. If your argument was meaningful in any way, it would mean that IP is necessary for innovators to avoid producing for external economies (which is false), or it would mean that people other than innovators are not producing for external economies (which is also false). Unless you subscribe to one of those possible interpretations, your argument is meaningless.

It is nearly a verbatim quote from Mises, as you may recall.

It is not “nearly a verbatim quote from Mises”. Your alterations make it more biased and more wrong.

As I said, I didn’t make that claim, and you call me a fraud?

So, you do not claim that IP is necessary for innovators to avoid producing for external economies, and you do not claim that people other than innovators are not producing for external economies? Well then, what is it for?

There is no right, unless of course the owner creates a limitation as a condition of transfer, the eh, POINT of this discussion.

The copy, however, can take place without a transfer (of the original, presumably), which is the point of your error.

You mean since you assume your conclusion, it MUST be true?

I’m merely pointing out that you are assuming the conclusion, although you pretend that you are proving it. To day, you have not defined copying either.

Which are?

I already explained it sever times: you use causality to prove a right was violated.

If technology makes it easier to steal a car, suddenly thieves have new rights to steal cars?

So, you do need to assume that copying is wrong in the first place to conclude that there is something wrong? You’re making a circular argument.

unsupported assertion

Since you have to day not explained what copying is, why should I assume it is in any way relevant?

It is your assertion, not mine.

However, I am not the one making circular arguments. My expression of assertion proved that your argument is circular: you are unable to provide a theory that makes it possible to conclude that copying is a property rights violation, you need to assume it.

Another unsupported assertion that ignores the entire subject of discussion; Brilliant.

So, when you make the unsupported assertion that copying violates rights, fail to define what it means, and neglect to address (gasp!) the original problem of such a right contradicting rights in physical goods, then all is fine, but when I make the opposing assumption, then it’s a no-no?

Copying occurs everytime you use one of your senses. If it was illegal, then you would not be permitted to do anything.

IP is not required to produce ANY goods, or IP would be responsible for 100% of the GDP.

So, if IP is not required to produce any goods, what is it required for?

So for you to argue that you earn your living without relying on IP is completely irrelevant. That is what I said.
On the contrary, it proves that IP is not necessary and your whole argument falls apart.

That’s interesting; you mean you DO rely on Statist labor laws to earn your living?

What are you talking about? I’m disproving that a specific right is necessary to earn money. I’m not claiming that purpose of rights is to earn money.

I spend so many hours a day at my desk doing work for my employer, and I get paid.

And your employer adds some markup and sells the resulting goods/services. Although there is a causal relationship between the final good and your labour, you do not have a right for the markup, because it does not follow from the contract with your employer. Similarly, if you started working without agreeing on a payment and your “employer” would deny you payment, you would not have a right to the payment either. IP is based on the assumption, just like the labour theory of value, that because you exert labour, other people that benefit from it are required to pay you. But as you clearly see from the example above, this is only the case if you covered the extent of the labour with a contract. Same with IP: if you do not have a contract with them, they are not required to pay you.

Am I really a Marxist for doing so?

Actually, you quite possibly are. Not because you’re an employee, but because you use the labour theory of value in your arguments.

You are getting tiresome. You are not even running in circles, you are completly and utterly lost.

You’re the one lost, obviously. I’m just having a hard time keeping track of you while not getting lost myself.

Peter Surda July 5, 2011 at 3:50 am

I can’t edit the broken quoting, I hope it’s legible nevertheless.

Wildberry July 5, 2011 at 11:48 am

Peter Surda July 5, 2011 at 3:46 am

The very fact that they can legally occur independently of each other

Have you shown how or why this assertion is true? I don’t recall an argument in support of it. I am saying to you that an economic interest can exist if and only if the property from which it is derived is owned. How is that false?

You can’t wiggle out of this that easily. If your argument was meaningful in any way, it would mean that IP is necessary for innovators to avoid producing for external economies (which is false), or it would mean that people other than innovators are not producing for external economies (which is also false). Unless you subscribe to one of those possible interpretations, your argument is meaningless.

I was only pointing out that you were quoting yourself, not me. It seems that if you want to argue with something I said, you have to start from what I said, not what you said in response. Like this:

Unless you subscribe to one of those possible interpretations, your argument is meaningless.

This is a false dichotomy. The statement is that IF anyone can freely reproduce the works of authors (say) without compensation, THEN the author is producing for an external economy. Therefore, without IP, since it prohibits free reproduction, authors need not produce for external economies.

It is nearly a verbatim quote from Mises, as you may recall.

It is not “nearly a verbatim quote from Mises”. Your alterations make it more biased and more wrong.

The Externlrl Economies of Intellectual Creation

The extreme case of external economies is shown in the “production” of
the intellectua1 groundwork of every kind of processing and constructing.
The characteristic mark of recipes, 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 recipes–cspeciaIly the inventors
of technological procedures and authors and composers-in a peculiar
position. They are burdened with the costs of production, while the services
of the product they have created can be gratuitously enjoyed by
everybody. What they produce is for them either entirely or almost entirely
external economies.

Human Action, Scholars Edition; page 657

So, if IP is not required to produce any goods, what is it required for?

Please accept this correction.

IP is not required to produce ANY [AND ALL] goods, or IP would be responsible for 100% of the GDP.

Wildberry July 5, 2011 at 11:55 am

something is wrong with the editing function…

Floyd July 4, 2011 at 11:24 am

Wildberry….. more like Trollberry.

IP is, and always has been, a creation of the State. No State, no IP. Therefore, IP is illegitimate. Let me know if I need to break that down for you.

nate-m July 4, 2011 at 11:35 am

He thinks that rights are created through consensus and that at least minimal government is required for society to function, so that line of reasoning is not going to be effective against him.

Peter Surda July 5, 2011 at 12:32 pm

Wildberry,

Have you shown how or why this assertion is true?

Yes, I did, several times, and you cowardly ran away from the debate.

I was only pointing out that you were quoting yourself, not me.

So, you did not say this:

A producer of an intellectual work can never compete on price with somone who produces with external means.

Or this:

Despite his protestations to the contrary, this is exactly the purpose for which property rights, a human device, are employed; to prevent producers from producing, for the most part, for external economies.

Or this:

If it was zero [duration of patents/copyrights, ed. Surda], then producers would ALWAYS be producing for an external economy.

Or this:

You are so right about Mises. I have quoted this very passage a number of times, and have fanned the flames by asserting that to insist that authors should be willing to be “producers of external economies” is equivalent to advocating for slavery. Those with a choice will simply not do it.

(emphasis added)

Lies and more lies, Wildberry. IP does not eliminate external economies, nor does the absence of IP prevent the authors from producing internal economies. Your whole thread of argumentation is gone. Or, to be more precise, it never existed in the first place. You have been explained at the very beginning that your argument is wrong, and yet you continue month after month repeating that.

But behold! Suddenly you do not claim that this is relevant! Magically, the reason for IP is not to benefit authors! Rather, it is to promote the dissemination of “intellectual works”! Talk about hypocrisy. Lies and lies. Unbelievable.

It is nearly a verbatim quote from Mises, as you may recall.

You present it in a deceptive way, since your interpretation contradicts the pages Mises wrote directly preceding the quote you are providing. You’re a fraud.

Please accept this correction.

What correction? You just tried to wiggle out of a lie.

IP is not required to produce ANY [AND ALL] goods, …

Yet, you claimed as quoted above, that without IP, producers would choose not to produce some goods. Now you claim that the goods would be produced nevertheless.

Bullshit and more bullshit. Stop wasting other people’s time you moron.

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