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Source link: http://archive.mises.org/5764/intellectual-property-and-think-tank-corruption/

Intellectual Property and Think Tank Corruption

October 17, 2006 by

I’ve learned from reliable sources connected with various free market think tanks around the world that various important companies, in particular pharmaceutical, have become “supporters” of such think tanks–provided, of course, that the think tank supports intellectual property rights. Could this be one reason many free market think tanks are supportive of IP despite a mounting case against it?

I wonder if this is one reason for some of Cato’s pro-patent positions. Just wondering, not accusing–but see, e.g., Cato Tugs Stray Back Onto Reservation; Jude Blanchette’s The Reimportation Controversy; Protectionist Cato?; Drug Patents and Welfare (see also Epstein and Patents and Richard Epstein on “The Structural Unity of Real and Intellectual Property”). One Cato “scholar” formerly very critical of patents seems also to have “evolved” in his view of pharmaceutical patents.

And note that Cato’s pharmaceutical donors include Eli Lilly & Company, Merck & Company and Pfizer, Inc., at least according to SourceWatch (admittedly, though, the site does not provide a source for their claim, and none of these companies are listed in Cato’s 2005 annual report).

***

Update: Another thought: The lead funder of the old Nafta Network, which roped in every single libertarian think tank except you-know-who, under the leadership of Cato, to propagandize for Nafta–was Eli Lilly. Hmm, I wonder if Nafta had an intellectual property component? Well, see here and here.

{ 158 comments }

Stephan Kinsella October 23, 2006 at 4:24 pm

Stephan Kinsella wrote:

“First, what about methods? There is no way to stamp “copyright” on a method; yet that too is an invention that ought to be protectable if a new apparatus us. And anyone with familiarity with patent law and the difficulties of defining the metes and bounds of an invention (by means of “claims”) will realize that stamping something “copyright” is an utterly unworkable way of specifying the invention that is to be claimed. Moreoever, anyone familiar with the utter lack of objectivity and inherent ambiguity and vagueness of IP concepts will realize that it is not possible to arrive at an objective identification of what invention one is entitled to have ownership over etc.”

My comment to above statement was:

“If this theory is not applicable in all situations, well that might be so, but what we are debating about are in those cases which it is applicable.”

”Original material object and property” =

1. A first form from which other forms are made or developed: Later models of the car retained many features of the original.
2.
a. An authentic work of art: bought an original, not a print.
b. Work that has been composed firsthand: kept the original but sent a photocopy to his publisher.
http://www.answers.com/original%20

Let me try to clear up something here. Copyright usually refers to original works of authorship–novels, poems, song lyrics. Patent covers inventions–new, non-obvious, and useful inventions–apparatuses (machines) or processes (methods) that achieve a useful result.

Each has its own problems. I was attacking the latter in my comment above–the problems of lack of objectivity of what is an *invention*. I did this even though Rothbard is using the word “copyright” because he apparently thought the concept of “copyight” could be used to protect *inventions*–the example he gives is of a mousetrap, which is the standard example of an inventive apparatus.

So there is a bit of confusion, introduced here by Rothbard’s confusing use of “copyight”.

Now, that is not to say that there is lack of objectivity in defining what is an original work of authorship. I think the problem is somewhat differnt than in the case of invention. In invention you have to claim what your inventino is. in copyrihgt, for works of authorship, it’s a bit different; I admit in a sense that it’s somewhat easier to identify original works of authorship; but even here there are problems. First, all such works are to some degree derivative or existing knowledge–they build on other works. Second, copyright is not just the right to reproduce the exact, literal pattern — it covers “similar” copies, and covers more abstract patterns underlying the literal pattern (plot instead of the actual words of the book); and it covers things like derivative rights and broadcast and performance rights etc.

Sasha Radeta October 23, 2006 at 4:30 pm

STEPHAN SAID: ”
So on the day you don’t-perform, this not-performing … a non-action … is an act of … theft… of… what? Of money that does not exist? How can you steal something that does not exist?”

NON-ACTION????

You violated action axiom again – on this Austrian blog (blasphemy!).

Humans cannot “not act”. By acting contrary to your obligations for which you were paid (applying your labor elsewhere) you deprived your employer of something that belongs to him (paid service).

Stephan Kinsella October 23, 2006 at 4:36 pm

Your transsexual example was absurd, not because of Rothbard’s theory, but because it was completely irrelevant. You do not have a “right” to be invited out by someone. Rothbard would never argue that a person E is violating that transsexual’s right.

I thought it was cute. No, you don’t have a right to be asked out. But if you own an idea, that means that others who obtain it illegitimately have no right to *use* it. That means they can’t base their actions on it. That means they have no right to act in any way other than they would have in the absence of hte info. Etc. I’m just saying a case could be made, showing how absurd is the notion of owning ideas. See?

When it comes to the mousetrap example, Rothbard was obviously referring to the fact that if a third party caused you the liability by breaching our contract – you would hold him/her liable. He didn’t state it explicitly, but that is the only way to interpret this.

I disagree. He is trying to show some kind of contractual way to build up a version of copyright/patent. He is trying to show how the third party could be prosecuted for obtaining information from observing an object that the possessor was not supposed to let him see. When he says the third party is not entitled to use the information he has, he says it’s because you are not entitled to more than the title of the guy you got it from. I see no way to construe this except for the idea that you have title to information.

Sure, it’s confusing–I think R was confused here, and this is incompatible with his property and contract views.

And let me say this: suppose you are right. All that means is that Rothbard did not put forth *any* way to stop an “innocent” third party from using information he has. For example: I’ve heard the theme to Star Wars many times. What’s wrong with me recording this and selling it? Etc.

STEPHAN SAID: “This is just stupid. To own one’s body means the exclusive right to control its use. Once you have this right, you can do whatever you want with your body–sleep with it, have sex with it, study with it, enjoy music with it, or perform labor with it that someone else pays you for. Voila!”
————-

If your “exclusive right” did not come from the fact that our body is also a “first user” mix of our energy with unclaimed matter- you imply that someone else gave us this right of self-ownership and that someone else could “justly” take it away.

You’re the owner because you have a better claim than anyone else–this is your appropriation of the unowned thing–your being the first to use it. Since otehrs claiming it later also want to use it–control it–it is first “use” that matters. This is the objective link.

I don’t care if you want to call it “labor”. Go ahead. That does not mean you “own” labor, any more than you “own” your “first use” of a thing.

Labor is more than something that we do with our bodies, because it is real physical phenomenon, through which we acquire property. If we didn’t own our labor, mixing it with unclaimed objects (first use) would not make those object our property.

Why? I showed in my paper that creation, and labor, is both unnecessary and insufficient for property rights. If I use my labor to transform your hunk of marble into a statue, I don’t own the statue. Who does? The guy who already owned the marble. Even though he does not own my “labor”. So labor is insufficient. Likewise, I own the marble that I first find and emborder because I thereby establish the first objective link to it. It has nothing to do with owning my labor–it is unnecessary to introduce this silly concept and assumption.

“Funny you cannot answer the essential question: what is it theft of? What *exactly* is being stolen: And when did the theft occur?”
————————————————–

I already answered that question before: you committed the theft of labor that you owe to your employer, by spending it elsewhere.

You committed theft of labor that you owe… that you did not perform… Sorry–where is the labor at, that I am stealing? By what act did I “steal” it? Not-acting is now stealing-the-thing-that-you-did-not-do…? Uhhh HO-kay….

You were paid for it

Well, if it’s an IT, I guess it has to have an owner.

- and you were supposed to deliver it.

You mean, my doing something is “delivering” the “doing of the something”? Or the somehthing itself?

You owe damages and not the labor – because you cannot go back in time to deliver it – just like a seller of spoiled non-durable goods cannot go back in time and deliver what was promised. Rothbard was not wrong here, just consistent with the fact that we own labor as a logical extension of self-ownership over our entire physical body – and the fact that we acquire property by mixing our property (labor) with objects that no one owns.

We don’t own things-our-body-does. We own our bodies. Being able to do what you want is just a consequence of owning the body. See?

Stephan Kinsella October 23, 2006 at 4:40 pm

NSK: “So on the day you don’t-perform, this not-performing … a non-action … is an act of … theft… of… what? Of money that does not exist? How can you steal something that does not exist?”

NON-ACTION????

You violated action axiom again – on this Austrian blog (blasphemy!).

Humans cannot “not act”.

Whatever. The point is you cannot point to a specific action that is the theft in question. What is the action? When did I commit this act of theft? What action did I take to commit it?

By acting contrary to your obligations for which you were paid (applying your labor elsewhere)

Ah. So you are now penalizing me for doing something else instead of what you wanted me to do. Let’s say I’m in a coma on the day I’m supposed to perform, at 4pm. At that time, I suppose I begin the action of theft, even though I’m unconscious. Wow. Impressive. I must be Houdini.

you deprived your employer of something that belongs to him (paid service).

He owns my service, even though there is no service. Interesting concept. this is fun, Sasha, go on–I do like speculative science fiction.

Sasha Radeta October 23, 2006 at 4:44 pm

Jesse,

If we agreed on a market transaction and you voluntarily paid me in advance, we basically transferred titles. I now own that money and you will own my good/service on the day that we specified in contract. If I fail to deliver your good/service – that is exactly what I stole from you. The fact that I would have to pay to you that amount of money, plus interest, plus some other damages, does not deal with what I actually stole from you.

As far as your “loophole” goes – you are missing the point. My original was sold to my publisher and I will hold him liable for any discovered copies. The publisher will than hold any discovered violator liable, regardless of who was the “middle man” in violation (our caught violator could provide that information).

Sasha Radeta October 23, 2006 at 5:01 pm

Stephan, I showed that you are misinterpreting Rothbard – and that third party does not need to be bound to contract. If our contract gets violated you will be responsible to pay me in the amount of all unauthorized copies and/or profits they yield. If a third party caused you this liability, knowing of consequences that you would suffer, there is no doubt that you would hold that third party liable. There is no need to repeat this point any more.

Instead I’ll focus on this one
________________________________________________
“Ah. So you are now penalizing me for doing something else instead of what you wanted me to do. Let’s say I’m in a coma on the day I’m supposed to perform, at 4pm. At that time, I suppose I begin the action of theft, even though I’m unconscious. Wow. Impressive. I must be Houdini.”
__________________________________________________

It is not “what I wanted” you to do. It is what you OBLIGATED yourself to do. If you fall into a coma, you didn’t commit a theft, you were simply unable to deliver your service, just like any other seller who falls into a coma before he can deliver your paid products. Nothing impressive about that.

STEPHAN SAID: “He owns my service, even though there is no service”

Exactly! You spent that labor elsewhere, although it belongs to him. That’s why there was no service for your employer – you didn’t deliver it. Just like a pizza that I pay for in advance is mine, even if you decide to give it to someone else.

PS
Can you please start respecting action-axiom? There is no “non-action”. By doing something contrary to your contract, you can commit the ACT of theft – like when you watch TV instead of providing me the product or service that I already paid for.

Sasha Radeta October 23, 2006 at 5:08 pm

STEPHAN SAID: “You’re the owner because you have a better claim than anyone else–this is your appropriation of the unclaimed thing–your being the first to use it.”

And why do I have a “better claim” that anyone else? Because I mixed my labor with some unclaimed object (transferring my property in labor to that thing) – or because the “society” (abstract term) decided to grant me that control? The former is so obvious and self-evident, while latter is a socialist nonsense.

Jordan October 23, 2006 at 5:37 pm

Sasha:

Contractual agreement is not merely seller’s “desire” – it is a binding agreement.

Read my statement more clearly: I said that copyright is the seller’s desire, not contractual agreement.

You have yet again performed an Argumentum ad logicam , i.e., a straw-man argument. You change the argument we make and refute that instead of the argument put forth. You did this with Steven’s transsexual example and you’re doing it with my copyright example, by changing it from the act of putting “copyright” on a book and equating that to a contractual agreement. You have not addressed my issue–that the former is not an agreement and therefore cannot be binding.

Let’s simplify the issue: If B let’s C copy the work, despite B agreement to A that he would not, is B to be legally responsible for all the copies C makes, and all the copies D makes of C’s copies (ad infinitum)? Let’s assume the contract is written in such a way.

To legally hold B for C’s and D’s actions is a complete fallacy. You can fine B for leaking to C or being negligent if A can prove B was negligent/responsible: This is A punishing B for B’s actions. But you cannot jusifiably punish B for C’s or D’s actions–this is absurd, with absurd consequences.

To return to my previous example (which you most conspicuously ignored), if B is negligible and leaves confidential information available to C and C acts on that, it is legal for A to punish B for the leak–but not for anything that happens as a result of the leak.

Jesse October 23, 2006 at 6:20 pm

Sasha: “I now own that money and you will own my good/service on the day that we specified in contract.”

You are clearly arguing that future labor is alienable here (“you will own my service”). However, your position is inconsistent: if labor is alienable, then the buyer must have the right to protect his/her property right in the labor against theft by compelling you to perform the promised service. (It would be defense of property, not aggression.) However, as I said before, I do not claim that labor must be inalienable. Rothbard did, and I am inclined to agree with him, but you are free to consider services to be alienable goods if you wish. Something similar can be accomplished without alienable labor through performance bonds, the only differences being that the “damages” are fixed in advance through the contract rather than determined by a court, and that the service cannot be compelled, as failing to perform it is not itself theft. I therefore see no need to alienate my labor and would not do so.

Sasha: “My original was sold to my publisher and I will hold him liable for any discovered copies.”

So far so good…

“The publisher will than hold any discovered violator liable, regardless of who was the ‘middle man’ in violation (our caught violator could provide that information).”

…until here, where you miss the point completely. If by “middle man” you mean the buyer/publisher who leaked the novel’s contents, then the so-called “violators” must be the rightful owners of the extra, unauthorized copies, third parties who have committed no trespass or theft and with whom you have no contract. They are not responsible for a bad contract the “middle man” or the publisher got themselves into. Violators of what, I ask? They have violated no contracts, and stolen no property. The “middle man” you speak of would be liable for any copies made, of course, but you/the publisher can neither hold the “violators” liable (no contract or trespass, remember) nor compel them to tell you who the “middle man” was (one cannot compel any service, including testimony, unless it has previously been alienated voluntarily, if that is possible).

If X agrees in a contract with Y that X will pay Y $50 every time someone breathes, that does not make anyone else liable for X’s loss should they happen to continue breathing. X agreed to a bad contract; X is responsible for his/her own loss. In the same way the third-party copiers are not liable for the buyer’s fines, even if those fines are conditioned on the copiers’ actions, unless they first committed a trespass against the buyer (theft, for example); then they would be liable for the effects of the theft, including any fines incurred as a result.

—–

Jordan: B could be fined for anything specified in the contract (which B agreed to voluntarily), not just those things which result from malice or negligence. This would, of course, be a poor contract for B, but it is not impossible or unjust (as it was voluntarily agreed to by B). C, of course, is not covered by the contract, and can only be made liable for fines imposed on B if C was the cause of those fines, through some action (such as theft) which already made C liable for damages: the fines would be secondary effects of a trespass committed by C against B.

Sasha Radeta October 23, 2006 at 6:31 pm

JORDAN: “You have yet again performed an Argumentum ad logicam , i.e., a straw-man argument. You change the argument we make and refute that instead of the argument put forth”

But that is exactly what you did! You misinterpreted my statement about the third party’s theft – just to have something to respond to, when in fact you don’t have anything to say against my real arguments. By the way – Stephan’s transsexual example had nothing to do with our topic, and I only stated how absurd it was.

—-

Terms of use (including copyright clause) – are contractual agreements that you acknowledge when you decide to purchase the use of my product (they can even say: “by purchasing this product you agree…”). So it is a contract, regardless of what you say.

If B let’s C copy the work, despite B agreement to A that he would not, is B to be legally responsible for all the copies C makes, and all the copies D makes of C’s copies (ad infinitum)? ABSOLUTELY! The contract stated that B will be responsible for violations of those terms and he will be held accountable. Contracts must be respected, or there would be completely pointless.

To return to your previous example (which I most conspicuously ignored for its utmost absurdity), if B is negligible and leaves confidential information available to C and C acts on that, it is legal for A to punish B for the leak–based on their contractual agreement which defines the consequences of such negligence. And those consequences amount to all produced copies from that particular item and/or profits they yielded.
If B was not negligent and he was a victim of C, than he can turn to him to recover the amount that A is asking for.

Sasha Radeta October 23, 2006 at 6:41 pm

JESSE SAID: “You are clearly arguing that future labor is alienable here (“you will own my service”). However, your position is inconsistent: if labor is alienable, then the buyer must have the right to protect his/her property right in the labor against theft by compelling you to perform the promised service. (It would be defense of property, not aggression.)”
——————————————-

No, you are misinterpreting me! The undelivered labor is in pat tense. Just like a pizza that is delivered to someone else and not delivered to me (although I purchased it). There is nothing to “protect” there, since we cannot send the violator back in time to correct his trespassing – but the buyer can claim that the theft occur and he can demand a compensation based on undelivered labor or pizza.

Sasha Radeta October 23, 2006 at 6:54 pm

JESSE ALSO SAID:
“…until here, where you miss the point completely. If by “middle man” you mean the buyer/publisher who leaked the novel’s contents, then the so-called “violators” must be the rightful owners of the extra, unauthorized copies, third parties who have committed no trespass or theft and with whom you have no contract.”
___________________________________________________

That is another misinterpretation. When I say “violator” it is clear that I mean: a person who violates the contract with my publisher…

But like I said, I don’t care if there was a “middle man” in violation of my contract (if there was a negligence of part of my publisher), because I will be compensated based on our terms of use. If the publishing firm wants to recover from that, it will have to investigate who “leaks”, but that is not my problem.

Jordan October 23, 2006 at 7:32 pm

Jesse:
I’ll concede that point. But each and every copy A wishes to fine B for would have to be proven to come from B’s negligence and it should be clearly stated in the agreement between A and B (just clarifying–I’m sure you’d agree).

Sasha: considering the concession I just made, I think we’re close to agreement here.

But what I don’t believe is that this contract (which only punishes B for violation), while techinically valid (as Jesse corrected me on), in any way “fixes” the “loophole.” B may be punished ad infinitum for his mistake, but C and D can still freely act on the information B mistakenly leaked. The only exception to this is if B had offered the same terms to C (and D) as A asked of B, which just transfers the case between A and B to B and C. In this case, B can be compensated (at least partially) for what he owes A by C or D.

The point is moot, however.

The “agreement” is so lop-sided in A’s favor that he’d have a hard time finding a willing B to enter the agreement in the first place.

I fail to see how the market would adopt such lop-sided arrangements.

greg October 23, 2006 at 7:45 pm

Björn> “If this theory is not applicable in all situations, well that might be so, but what we are debating about are in those cases which it is applicable.”

When could it be applicable? There is always some level of vagueness, and the dictionary doesn’t help. I don’t think anyone denies that correlations between some manufactured objects will be very high — for example, long books (Rothbard talked about that example, I think in TEOL). But “ideas as property” proponents don’t say just “high” correlation, they also include entire paraphrasing of works (similarity/correlation). There is non-subjective way to set a correlation (similarity) index/limit (SPAM victims know this). For example, suppose a writer puts his ideas down on a paper and then the paper blows out the window. So the author writes the page again, but with some inevitable change, but essentially the same meaning. The author is hoping to get copy protection for the idea on the page, not the “exact” words. Widget makers want protection for the general pattern, the idea. One maker might make their “original widget” out of steel, but another might create the same functional thing in plastic. It is the idea that is hoped to be protected, not some “original steel physical model,” of which calling one particular implementation called “the original” is arbitrary (as any R&D engineer knows).

What happens if one loses the “original widget?” Does the patent instantly expire? What if the original manuscript is destroyed in a flood? Does the copyright instantly expire? The inclusion of “original” is meaningless in this context. The “original” is in the nature of the idea/pattern, not a particular physical implementation. Incidentally, a widget manufacturer does not need an “original.” They only need instructions. The mythical “original” can vaporize with no consequence at all if the idea (abstraction) behind the physical implemetation is stored symbolically. The scoundrel who painstakingly copied the master’s original work will instantly transform into the hero when the master’s original gets obliterated by a lightning strike.

Abstractions do not have physical limitations, only their implementations do (that is actually the beauty of ideas). This is chasing a ghost. If one wishes to protect ideas, there are only a couple ways to do it: (1) keep it hidden, (2) positive right (political rent; force or power).

One can say “I believe there should be positive rights in ideas or protection of ideas.” That may be okay — but it is a fairness doctrine — not a libertarian property doctrine. There is a reason why no one can explain why ideas are property. Ideas don’t have the scarcity quality that physical objects do, and that is the beauty of wealth they offer. That is exactly why the claimed first discoverer of an idea wants the protection from replication — they know that ideas are abstractions that can be replicated ad infinitum given the physical resources. Naked ideas have no obvious characteristics in common with real and personal property, other than the fact that they can describe it. Calling ideas “property” is a category mistake.

Maybe the consternation this stirs up is because this whiffs of a property theory that does not satisfy a perceived social problem that those who seek a comprehensive theory wish it would.

Sasha, no one could care less how much labor or energy someone expended. The idea is ridiculous. If I ordered a pizza, I don’t care if it got to my door via magic carpet or Dorothy clicking her heels three times. The pizza boy doesn’t care how many calories he burned thinking about ovens, dough, tomatoes, and directions to my house. The deal was $20 for a pizza. The pizza boy doesn’t want their labor back if I don’t pay — they can’t get it back. The pizza boy wants $20. If I open the box and it is filled with dirt, the pizza boy didn’t steal my labor that I performed to get the $20. He stole my $20 — he never wanted “my labor,” regardless of whether or not he delivered pizza or dirt. The only items than can be stolen in the transaction are pizza and $20 (material things). That’s all. No one “buys labor” in any meaningful sense. They buy what it accomplishes. The notion of “buying labor” makes no sense because it adds exactly zero to any understanding of who owes what to whom.

Sasha Radeta October 23, 2006 at 9:27 pm

GREG SAID: “No one “buys labor” in any meaningful sense.”

And what do you buy when you hire a customer service representative, cashier, merchandiser, and janitor for your hypothetical store? Do you buy people like a slave-owner, or you purchase their services. Of course it is the latter – you buy people’s labor services in labor market. It is much easier to realize this fact of life when you choose the right example. The example with pizza delivery has nothing to do with sale of labor… you are a little bit confused there…

Oh – if you pay for your pizza in advance, you voluntarily exchanged your property title. You don’t own the money – you own pizza. If pizza boy doesn’t deliver you YOUR pizza, he stole it from you – not the money. That is basic case of contract law. Ask Stephan if you don’t believe me.

————————————————–
GREG SAID: “Sasha, no one could care less how much labor or energy someone expended. The idea is ridiculous.”
————————————————-

That was my point exactly! That is why I said to Jesse that it doesn’t matter that so much of our energy is spent on something other than labor for which someone pays us (perfect machine does not exist, especially not in human form)… That does not change the fact that we own our labor – and that we exchange it for someone else’s money. If someone refuses to pay for our labor – it is the theft, because we exchanged our services for money (that money becomes our property).

Sasha Radeta October 23, 2006 at 9:53 pm

Jordan,

you understood this Jesse’s point:
—-
If publisher B proves that C was the cause of those fines owned to the author A, through some action (such as theft) which already made C liable for damages: the fines would be secondary effects of a trespass committed by C against B.
—–

But that does not mean that person C will be allowed to continue with his trespassing (for which he was already held liable). For every future trespassing, he will continue to be liable for damages to B.

We could also say that the contract between A and B would be good enough to prove that any unauthorized copy belongs to the author – and that person D who buys an unauthorized copy from the violator C is in fact buying stolen merchandise (that under his contract with publisher B should have been forfeited to the author). Person D is also liable for economic loss to the author if he makes more of those copies from the copy he unlawfully acquired (because it belonged to the author). So not even side D would be safe in some “loophole”. But from our experience – it is important to stop violator C (or large “leak” that develops piracy).

Björn Lundahl October 24, 2006 at 2:23 am

I have written:

” Information is not a scarce resource but the original material object and property is (an original book, painting, invention etc). The right to make contracts about property is derived from the right of property. If information in itself, is a scarce resource or not, has then, nothing to do with it.
Well then, I own justly (in accordance with libertarian ethics) a scarce resource. Because I own it, I have all the rights to that property. I choose to sell all the rights to that property to somebody, except the right to copy it. What is, logically, wrong with that? I just can’t get it. How can anyone “prove” that there exists any flaw with this theory?”

Regarding a third party:

So the answer might be that someone needs the original owner’s right to the original material object and property (the title transferred) if this someone could be justified to have the right to copy it.

If this someone independently has transformed an idea to a material object and property? Well, then it is not a copy, is it?

What about an idea that is not realized into a material object and property? No one can “own” an idea, so anyone has a right to use it.

Björn Lundahl, Göteborg, Sweden

Jesse October 24, 2006 at 8:43 am

Sasha: “We could also say that the contract between A and B would be good enough to prove that any unauthorized copy belongs to the author – and that person D who buys an unauthorized copy from the violator C is in fact buying stolen merchandise (that under his contract with publisher B should have been forfeited to the author). Person D is also liable for economic loss to the author if he makes more of those copies from the copy he unlawfully acquired (because it belonged to the author). So not even side D would be safe in some ‘loophole’.”

No, you can’t assume that all unauthorized copies were stolen from the author, because those copies may never have belonged to a buyer (“violator C”) to begin with. If “violator C” owned the raw material when they were formed into a copy then yes, that copy would immediately become the author’s and any sale of it would be theft. However, if the raw materials belonged to D then D would own the resulting copy (regardless of whether C or D actually made the copy) and D is under no contract to give it to the author; the copy would remain D’s (though C would still be liable for it due to C’s contract).

Furthermore, if a copy belonging to the author (originally owned by C) were sold to D then C would be liable for any copies. D was not a thief; it was C that stole the copy by selling it. D would be compelled to give up the stolen copy, which belongs to the author, but would have a claim against C for theft (failing to deliver the copy that C sold).

—–

Björn: There is no such thing as a “right to copy.” Copying is a compound action, composed of observing an object (internalizing its pattern as an idea) and creating a copy (turning that idea into a physical representation). To prevent copying without claiming ownership over the idea itself you would have to either prevent observation (keep it a secret) or prevent everyone else from creating a copy (manipulating their own property based on the idea). The former becomes impractical when there are many authorized copies; the latter would be trespass.

Sasha Radeta October 24, 2006 at 9:33 am

Jesse,

I made a “lapsus calami”, but we basically agree. By “all unauthorized copies” I referred to those copies that are produced by violation of contract between C and B.

Since the contract between publisher B and consumer C will say that any unauthorized copies shall be forfeited to the author. So it really does not matter if C owns “raw material” which produced those copies. According to his voluntarily accepted contract, any copy will become the author’s property – and sale of these copies will equal to sale of stolen merchandise.

If on the other hand D comes into a unlawful possession of C’s book and D makes copies, he is not bound by contract, but he is liable for damages caused by his actions. He will loose those copies.

RogerM October 24, 2006 at 10:16 am

From an Ayn Rand novel: “You men of genius will keep on creating even if we don’t reward you for it; you can’t help it; so why should we compensate you?” Sounds like libertarians on IP!

Kinsella: “Could this be one reason many free market think tanks are supportive of IP despite a mounting case against it?”

You’re confusing correlation with causation and assuming that because big pharma supports Cato, Cato must have accommodated big pharma’s interests. It’s more likely that Cato held its position on IP first and big pharma decided to support them for it. Did no one notice that 3/4 of their support comes from individual donors and the next largest chunk from sales, not from corporations?

As for the “mounting case against” IP, I feel a lot of heat and hear a lot of thunder from the anti-IP crowd, but not much light.

Jesse October 24, 2006 at 10:51 am

Sasha: “So it really does not matter if C owns ‘raw material’ which produced those copies. According to his voluntarily accepted contract, any copy will become the author’s property – and sale of these copies will equal to sale of stolen merchandise.”

It certainly does matter. C cannot give any copies to the author unless C owns them. C can give any/all of C’s own property to the author, including any copies C may own, but not property owned by others. C’s labor in transforming raw materials into copies does not alter their ownership: only a contract with the owner of the materials can do that. C can agree to pay for any copies in the contract, and that payment will be binding on C no matter who makes the copies, but C cannot (legally) give away, under any circumstances, any copies owned by D. If the contract requires C to transfer all copies to the author, regardless of their present ownership, and D will not sell D’s copies to C, then C’s contract is impossible for C to fulfill, and C will then be labelled a thief for not fulfilling the contract — which has no bearing whatsoever on D or the titles to D’s copies. If D owned the raw materials then the copies also belong to D and are not stolen property.

Oh, I see RogerM has arrived; the debate period must be over. I’ll see you all later, on some other thread.

Kent Gatewood October 24, 2006 at 11:21 am

Will people and corporations create because they have an inner need to create (per the Ayn Rand quote) in a state of anarchy, and not because customers will actually have to pay for their products.

As always,ad hominem comments are appreciated.

happylee October 24, 2006 at 11:28 am

Actually, I think it’s more correct to state that, when it comes to BigPharma, the need to create misery motivates. Take HIV as an example. Just today in the NYT (“All the lies deemed suitable for print”) there is a lovely piece about how AIDS drugs “unmask” other infections. Unbelievable. Further proof of needless suffering and the dumb-as-rocks reporter buys the theory that increased infections and death are a sign that the drugs work. War is peace and death is health. It is akin to my fist “unmasking” the latent black eye in the reporter’s face.

And no one should be surprised that BigPharma is a big IP fan. Evil does what evil is.

Sasha Radeta October 24, 2006 at 11:31 am

Jesse, you misunderstood what I meant by “it doesn’t matter if C owns ‘raw material’ which produced those copies.”

Even if C owns his “raw material” which he used to produce unauthorized copies – those copies will become the ownership of the author A based on C’s contract with the publisher B. By keeping these copies – C is committing a theft. Now, if D purchases these unauthorized copies – it will amount to the purchase of stolen goods. C will be liable for damages caused by all generated copies.

If D unlawfully obtained my book from C and than made copies of that book from his “raw material” – he will still be liable to C for all the he damages caused by creating the violation of his contract with publisher B – in the amount of these unauthorized copies and/or profits they generated.

There is no need to argue with this, since you basically agreed with all my points. If you don’t understand what I meant by the statement that the ownership of raw materials is not crucial here – just ask me.

Jordan October 24, 2006 at 12:03 pm

Does anyone here actually believe that this type of contract would exist in a free-market:

A writes book. A contracts with publisher B to sell book. Any unauthorized copies that arise originally because of B’s mistake will incur a fine of $X from B to A.

That contract is so ludicrously in favor of A that there’s just no way I could see any sane publisher B entering into it (If the book’s print ever made it on the Internet? B would be bankrupt in no time flat).

Though technically said contract would be valid, and it would be valid for B to pass said contract to C (assuming it’s not forbidden in the contract with A), but if this contract wouldn’t arise in a free market, what’s the point in debating it any further?

Sasha Radeta October 24, 2006 at 12:29 pm

It is impossible to argue that a voluntary, free-market contracts can be “so ludicrously in favor of one side” – although many socialists often say things like that. If both sides agree on some contract – that automatically implies that both sides are benefiting from that contract. If they don’t agree – that’s not my problem.

You misunderstood the purpose of voluntary contracts when it comes to terms of use. If publisher B would go bankrupt as the result of strict copyright protection – author A would not have any interest to formulate such contract. They would negotiate… So the market price formation would also be subject to complicated terms of use – and this is exactly the nightmare that central planners do not want. Go back to my first posting.

By the way, I think that a good book will find its widespread support from its fans – and that successful publisher will find a way to fight against piracy. Remember – private sector is much more efficient than government and there are many ways to track large violators.

Just let markets worry about that. Don’t try to be a “benevolent” creature that is busying itself with how free individuals will arrange their own contracts. They would do it better than government ever could – but that is not even the point here.

Kent Gatewood October 24, 2006 at 12:45 pm

Isn’t this thread based on pure logic and the absence of government. Government and existing law is irrelevant to the conversation.

Björn Lundahl October 24, 2006 at 12:58 pm

Kent Gatewood

“Isn’t this thread based on pure logic and the absence of government. Government and existing law is irrelevant to the conversation”.

Good comment!

Björn Lundahl

RogerM October 24, 2006 at 12:58 pm

Jesse:”Oh, I see RogerM has arrived; the debate period must be over.”

Ahhh! That hurts!

Jordan October 24, 2006 at 1:17 pm

Me:
That contract is so ludicrously in favor of A that there’s just no way I could see any sane publisher B entering into it

Sasha:

It is impossible to argue that a voluntary, free-market contracts can be “so ludicrously in favor of one side” – although many socialists often say things like that.

Why do you keep distorting my arguments into strawman arguments? Do you not wish to debate this any further? If so, just let me know.

Can you not see how out-of-context your reply is?

You:

Just let markets worry about that. Don’t try to be a “benevolent” creature that is busying itself with how free individuals will arrange their own contracts.

(Benevolent = Omniscent?)

Okay, fine. Won’t you please follow your own advice?

greg October 24, 2006 at 3:02 pm

Björn> Regarding a third party: So the answer might be that someone needs the original owner’s right to the original material object and property (the title transferred) if this someone could be justified to have the right to copy it.

What “right” is needed to access “original owner’s original material object?” How can person A control what person C can look at, or think about, or “do” without an express agreement prohibiting C from doing so? Person C might inspect the millionth widget (which rolled off some unknown assembly line), that happened to blow onto their property from who-knows-where during a storm. Person C then makes replicas. Suppose all that happened was a drawing (symbolic representation) blew onto their property, not even an actual object, and then C makes the object represented in the drawing. If C looked over A’s shoulder and saw a cool drawing, or a nice poem, how could C be violating A’s property rights if they replicate the object suggested by the drawing or replicate the poem? If C never said they would not look over A’s shoulder, how is C bound by the wishes of A? Does A own the light between A’s drawing and the manner the light strikes C’s retina? How does C infringe upon A’s liberty?

Again, one does not even need an “original object” to make “replicas,” and the notion of “original” brushes hard against myth. There are often many editions of an idea that never get stamped “original” but would nonetheless be sufficient to go the main distance towards understanding the underlying idea. The “original” might be held symbolically, for example in a bill of materials and assembly instructions only. It is only the idea a would-be copier wants, not an original object. A “good” object manifesting an idea is a way to reverse engineer the idea, of course, but again, it is the idea that is wanted, not some object. It is the idea that allows replication.

Sasha> And what do you buy when you hire a customer service representative,…?

Um, oh, that’s hard… Umm, a happy state of mind for the customer so the customer will give me money? I’d be just as happy if electrodes or robots (automated phone systems) did the job. No one care’s about the amount of labor involved. I don’t care if the CSR spent 10 minutes or 1 second, I only care what a happy customer cost me compared to what they paid me. If the CSR doesn’t make the customer happy, I’ll fire them no matter how much they labored, because what I want is a happy customer, not a laborer.

Sasha> That does not change the fact that we own our labor…

Well I’m not buying it. LOL

Sasha Radeta October 24, 2006 at 3:06 pm

Jordan,

You simply cannot say that even a hypothetical free-market contract is “so ludicrously in favor of one side.” If we even presume the existence of a free-market contract, we are automatically presuming that both sides benefited, or else contract would not be a possibility.

You can argue that contracts that protect copyright would not even exist, while I say that you have no evidence to support that claim. Instead, why wouldn’t let free individuals decide that? Like there is no universal price of a product, there wouldn’t be a set of universal terms of use when it comes to copyright. Why wouldn’t we let authors negotiate with their publishers and figure out their prices and terms? So I will follow my own advice – and I will advocate freedom, without the need to prove that market is not capable of delivering copyright protection (which is a wet-dream of every statist, who refers to this fantasy as to a “market failure”).

And by “benevolent” I sarcastically referred to those full-time do-gooders, who think they know what would be the best for all of us, before we even try it. Logical progression of their attitude is this statement: People, why should you bother and fail with your personal choices, when we already know what is best for you? Statism is founded on these hypothetical market “failures.”

I don’t care that you argue that copyright should not be protected by the state. If you argue that market is not capable of resolving this issue, you are supporting the quasi-arguments of those who say that we need the state – for exactly that purpose.

Sasha Radeta October 24, 2006 at 3:17 pm

Greg, don’t make me laugh.

Your workers certainly DO CARE if they spent 10 hours or 1 second on their jobs – and they will be entitled for the work hours they provided, not for the amount of your “piece of mind” – which can change from second to second. It is exactly comprarable to a hamburger seller that sells you his product, regardless of your stomach’s “piece of mind”. If both sellers (your worker and your burger-provider) fail to deliver those services and goods that they were paid for, they will both be liable, without any difference.

Look at the fallacy of your logic… Even if you say that you are paying workers or other sellers for your “piece of mind”, they must provide it by employing their labor or some other products. You are paying for that labor – just like you pay for a hamburger.

There is no way out from this… It doesn’t matter if you buy these facts of life or not.

Stephan Kinsella October 24, 2006 at 3:26 pm

Greg:

Sasha> That does not change the fact that we own our labor…

Well I’m not buying it.

Good one, Greg!

GREG SAID: “Sasha, no one could care less how much labor or energy someone expended. The idea is ridiculous.”
————————————————-

That was my point exactly! That is why I said to Jesse that it doesn’t matter that so much of our energy is spent on something other than labor for which someone pays us (perfect machine does not exist, especially not in human form)… That does not change the fact that we own our labor – and that we exchange it for someone else’s money. If someone refuses to pay for our labor – it is the theft, because we exchanged our services for money (that money becomes our property).

Sasha, labor is not property. No one “owns” it.

For something to be owned, it must be the type of thing that is ownable. Not all things are ownable–where “thing” really is just a word that applies to any conceptual identification of aspects of reality. The concept “thing” can refer to poems, phenomenon, shapes, etc. You have to have a theory of what ontological types of things are ownable. The answer is: scarce (rivalrous) resources. The body is one of these. Labor is just one thing you do with your body. Ownership of your body is completely sufficient to allow you to use it–to labor with it–and to benefit from this use of your body (from the labor). It makes no sense to say you own the labor.

It is not necessary for homesteading theory either. Locke was off track there. It was an unnecessary step. They used overly-metaphorical, imprecise, flowery languate then. We have to clarify it.

Sasha Radeta October 24, 2006 at 4:03 pm

I am still waiting for a proof that our entire physical body and its work is not “ownable”. Labor is a mean to your employer’s end – and it is scarce. Employers don’t pay you for your body’s presence, they pay you for the labor that you employ. I showed that the facts of physical reality state that we own our work – because it is a real physical property produced by our body (matter & energy). I also showed that we exchange labor for other people’s property – and we can be liable if we don’t deliver it. Also, I showed why Locke was correct – we acquire property because we mix unclaimed objects with our property (labor) – instead of claiming that “society” gave us that right by some “conflict resolving” arrangement (which implies that society can change it if there is a threat of conflict between rich and poor).

In fact, I have not seen a single argument against the labor-ownership theory of Locke, which Rothbard was smart to adopt when he explained the origin of property.

Jordan October 24, 2006 at 5:26 pm

Sasha:

If we even presume the existence of a free-market contract, we are automatically presuming that both sides benefited, or else contract would not be a possibility.

Show me where I said otherwise, please.

You can argue that contracts that protect copyright would not even exist, while I say that you have no evidence to support that claim.

Neither of us have any evidence to support our claims. What’s your point? Next:

Instead, why wouldn’t let free individuals decide that? Like there is no universal price of a product, there wouldn’t be a set of universal terms of use when it comes to copyright. Why wouldn’t we let authors negotiate with their publishers and figure out their prices and terms? So I will follow my own advice – and I will advocate freedom, without the need to prove that market is not capable of delivering copyright protection (which is a wet-dream of every statist, who refers to this fantasy as to a “market failure”).

Nobody is claiming “market failure” here. My assertion that a free market would not provide IP is not a claim of “market failure,” much less a call for governement intervention.

I don’t care that you argue that copyright should not be protected by the state. If you argue that market is not capable of resolving this issue, you are supporting the quasi-arguments of those who say that we need the state – for exactly that purpose.

I’m not claiming that the market is not “capable of resolving this issue,” I’m claiming that there isn’t any issue for the market to resolve. There is nothing quasi-statist in my assertions.

I believe that a free market would contain contracts similar to non-disclosure-agreements (where applicable) and terms-of-use agreements to control access to information/ideas, which are non-ownable because they are non-property (non-rivalrous). Neither of these are IP (copyrights, patents). Neither of these are air-tight. They still are, under certain specific cases, susceptible to a third-party loophole (detailed ad nauseum above), but they still could be effective in many applications. But as to what the market would adopt–I can say what they could not adopt–contracts that violate non-contracted individuals’ private property–but I cannot say for sure what the market would adopt otherwise. It’s an educated guess.

Sasha Radeta October 24, 2006 at 8:47 pm

JORDAN SIAD: “Show me where I said otherwise, please.”
————————————————-

Sure mate…

You said that the contract that protects copyright is “so ludicrously in favor of one side.” Well I said that that is a contradiction in terms. Voluntary free-markets contracts must be in favor of both sides (to a different degree) – or else, contract will not take place.

________________________________________________

JORDAN SAID: Neither of us have any evidence to support our claims. What’s your point?
________________________________________________

WRONG!!! My claim was that copyright was possible to formulate in a free market contract – and I supported my claim with analytical evidence. Your claim was (to paraphrase you): “OK, copyright is theoretically possible in free market contracts but they are unrealistic” – but that is baseless and even not so relevant for our discussion – because I said that terms of use would be negotiable and a part of a pricing process.

_________________________________________________

JORDAN SAID: “Nobody is claiming “market failure” here. My assertion that a free market would not provide IP is not a claim of “market failure,” much less a call for government intervention.
________________________________________________

Your assertion is wrong. And by saying that there would be no way to protect certain terms of use, you are (falsely) implying a market failure. Than you are supporting those who will sarcastically quote Ayn Rand: “You men of genius will keep on creating even if we don’t reward you for it; you can’t help it; so why should we compensate you?” That actually harms the libertarian side.

By the way, we closed your “third party loopholes”. Read more carefully. Copyright can hold in a free market setting, a lot better than under out nationalized “one-size-fits-all” politburo alternative.

Stephan Kinsella October 24, 2006 at 10:30 pm

Sasha baron cohen:

I am still waiting for a proof that our entire physical body and its work is not “ownable”.

Don’t you bear the burden of proof here? To assert something is ownable you need to show that it is the type of thing is. What is your theory about what kinds of things are ownable, Sashinator?

Labor is a mean to your employer’s end – and it is scarce.

Labor’s a scarce resource? Really? Do elaborate.

Employers don’t pay you for your body’s presence, they pay you for the labor that you employ.

And? Is the definition of scarce resource “what people will pay for”?

I showed that the facts of physical reality state that we own our work

When and where did it state this?

– because it is a real physical property produced by our body (matter & energy).

Yeah, wow, man, energy, wow man.

I also showed that we exchange labor for other people’s property – and we can be liable if we don’t deliver it.

Actually, you didn’t. On the former: it is true that “doing something” can be a condition of a title transfer of money payment from a payor; and that the payor might value your doing-the-something. So what? One can value the affection of his cat, but that does not mean anyone owns that affection.

Also, I showed why Locke was correct – we acquire property because we mix unclaimed objects with our property (labor) – instead of claiming that “society” gave us that right by some “conflict resolving” arrangement (which implies that society can change it if there is a threat of conflict between rich and poor).

Naaaahh. You didn’t. I have shown in detail many times–see my Against IP, and my recent How We Come To Own Ourselves.

In fact, I have not seen a single argument against the labor-ownership theory of Locke,

Oh, then see above :)

Sasha Radeta October 25, 2006 at 1:07 am

STEPHAN: “Don’t you bear the burden of proof here?”

SASHA: I explained why self-ownership implies labor-ownership (because human action takes place in physical reality) – but I also explained how we demonstrate that we own our labor (by exchanging our labor for property – instead of selling our body parts to employers as your alternative suggests).

On the other hand, you were incapable of explaining why else would the first use provide you with a “better claim”, and who decided and when that this is “better.” You strongest argument so far was “NAAAAAH.” That is really sad.

———-

STEPHAN: “To assert something is ownable you need to show that it is the type of thing is. What is your theory about what kinds of things are ownable?”

SASHA: Every physical thing in this world that can be employed as a mean to an end is “ownable”. Work qualifies as such.

——–

STEPHAN: “Labor’s a scarce resource? Really? Do elaborate”

SASHA: Sure. The demand for labor exceeds its supply when price is zero. So it is scarce. And it is a resource, since it represents a mean by which the employer pursues some end. Labor has value for an employer — a value derived from that of the goal — because he must regard its use as necessary in order to effectively achieve the goal. Employer does not need just the presence of your body or body’s parts – he needs your labor.

——
STEPHAN: “And? Is the definition of scarce resource “what people will pay for”?”

SASHA: No, don’t be silly. You have the definition above. The fact that employers don’t pay for your body’s presence – but for your labor – clearly demonstrates that labor is their valued mean. Because they value labor as a mean to their valued goal – and labor is scarce, they will pay for it. Economics 101.

—————–

STEPHAN: “When and where did it state this?”

SASHA: I used figurative speech. If you own a physical body, you own all of its physical properties, including work.

———

STEPHAN: “Yeah, wow, man, energy, wow man.”

SASHA: True. If you own your physical body, you own everything it consists of. You don’t like to discuss these physical matters because they don’t fit into your idea of property acquisition. But you cannot change reality by ignoring it.

——————-

STEPHAN: “it is true that “doing something” can be a condition of a title transfer of money payment from a payor; and that the payor might value your doing-the-something. So what? One can value the affection of his cat, but that does not mean anyone owns that affection.”

SASHA: Affection of one’s cat is not a mean to some end for your employer. Your labor is – and by exchanging it for someone else’s property you exercise that ownership (which is directly derived from the fact that you own your entire physical body).

By the way, labor is a “condition of a title transfer” – just like a delivery of a pizza is a “condition of a title transfer”. You failed to show that labor is not a property.

———–

STEPHAN: I have shown in detail many times–see my Against IP, and my recent How We Come To Own Ourselves.

SASHA: Naaaaaahh. By saying that we come to own our property by “first use” – you confirm Locke’s theory. Because how can you have a “use” without labor/work??? So you only confirm that property acquisition is impossible without applying OUR labor (our property) to unclaimed object.

You say: to heck with physics, we don’t own our labor. The fact that you cannot acquire property without some form of labor is coincidental to you. You say: we become owners by first use, because we have a “better claim” than someone else. But like I said: you were incapable of explaining why else would the first use provide you with a “better claim”, and who decided and when that this is “better.”

———————
(in his article “How We Come To Own Ourselves”) STEPHAN SAID: “…one is not really the “first user” of one’s body in the same sense as one is the first user of a previously unowned thing that one appropriates… If “first use” is not the ultimate test for the “objective link” in the case of body ownership, what is? It is the unique relationship between a person and “his” body — his direct and immediate control over the body.”

In other words, self-ownership can only exist out of action/work, which implies will. It is the action/work to secure one’s own existence that begets one’s self-ownership. Work (energy transfer according to physics) begets ownership, based on your own statements.

Sasha Radeta October 25, 2006 at 5:47 am

In summary: Stephan is trying to divert the discussion from his copyright fiasco. Not a problem…

Self-ownership must be accepted a priori, because it is based on the fact that humans act purposefully. Unlike animals, we have the ability to consciously manage our body (to produce actions). Self-ownership simply means that nobody else’s mind has the ability to produce actions/work of our body. Stephan proved that these purposeful actions are necessary pre-requisites of self-ownership (simple use of one’s body is not enough, since animals use their body too).

This proves that the original property acquisition (self-ownership) is based on one’s mind’s exclusive control of one’s “ability to work” – which is the basic definition of energy (check, if you don’t believe it). So the action-axiom on which the entire praxeology is based directly implies that we own our labor (transfer of our energy)

By understanding the origin of our first property (conscious control over “ability to act/work” = energy) – we can logically conclude how other property is acquired. Every single case of property acquisition involves mix of our body’s work with some unclaimed object. Since work is defined as a transfer of energy, it means that we transfer our existing property on that object. This property acquisition is based on transfer of our real property, instead on some imaginary, fictitious “decision” of “society.”

My theory is based on facts of our physical reality when I analyze the properties of physical objects – as well as praxeology when it comes to logical implications of human action. It is the science-proper (true to the Latin origin of the word: scientia = correct knowledge). It is very much different from “scientism” which tries to treat human action as a mathematical phenomenon. Equally wrong is Stephan’s attempt to deny physical characteristics of natural object, when he tries to include them in a praxeological hypothesis. A physicist cannot deny the axiom of human action and its derivatives – just like a praxeologist cannot deny physical reality in which human action takes place.

Jordan October 25, 2006 at 10:29 am

Sasha:

You said that the contract that protects copyright is “so ludicrously in favor of one side.” Well I said that that is a contradiction in terms. Voluntary free-markets contracts must be in favor of both sides (to a different degree) – or else, contract will not take place.

No I didn’t. I said your idea of how a contract could protect copyright was ridiculous. I didn’t say that if somebody did enter into such an agreement, that that would somehow be invalid. I have a point here. People are rational.

Sasha:

WRONG!!! My claim was that copyright was possible to formulate in a free market contract – and I supported my claim with analytical evidence. Your claim was (to paraphrase you): “OK, copyright is theoretically possible in free market contracts but they are unrealistic” – but that is baseless and even not so relevant for our discussion – because I said that terms of use would be negotiable and a part of a pricing process.

WRONG (yet again)!!! I never claimed that copyright was possible. I admitted that a contract with unlimited damages to a contracting party is technically valid.

Sasha:

Your assertion is wrong. And by saying that there would be no way to protect certain terms of use, you are (falsely) implying a market failure. Than you are supporting those who will sarcastically quote Ayn Rand: “You men of genius will keep on creating even if we don’t reward you for it; you can’t help it; so why should we compensate you?” That actually harms the libertarian side.

This is not market failure! In a free society, we wouldn’t have social security either. Is that a market failure as well?


By the way, we closed your “third party loopholes”. Read more carefully. Copyright can hold in a free market setting, a lot better than under out nationalized “one-size-fits-all” politburo alternative.

No, we didn’t close third-party loopholes. The third party is not part of the contract. Read again.

Jordan October 25, 2006 at 10:38 am

And you can punish B financially until the cows come home for his leak per his contract with A, but you cannot ever legally punish C if he never entered a contract with A or B and used his own private property to produce a copy of the idea leaked by B. That idea can be sold to D, E, or F legally.

Therefore, the loophole exists. But this isn’t market failure. It would only seem to be a market failure to a person who clings to the notion that we must have IP.

Sasha Radeta October 25, 2006 at 11:24 am

Jordan,

By saying that some possible contract “so ludicrously in favor of one side” – you committed the logical fallacy. Be a man, admit it, and move on.

By admitting that copyright protection in contracts is technically valid – you basically admitted that copyright is possible if two sides wanted it. That is all I tried to say. I didn’t argue that everyone would agree on those terms, but you didn’t prove that no one would. Move on.

You didn’t prove any third party loophole. By collaborating in unauthorized copying with person C – person B causes violation of his contract and he is liable to A in the amount of all unauthorized copies that resulted. He will thing again before he “leaks” something and creates such economic taking from the author A. So there is no loophole – as long as there is a liable side. Just face this fact and move on.

Jordan October 25, 2006 at 12:24 pm

Sasha,

I did not commit a logical fallacy. You misunderstood me.

I never admitted that “copyright protection in contracts is technically valid.” Saying so does not make it so. You again misunderstood me.

Perhaps the whole “loophole” term is misleading to you. I’m not trying to argue that B would have a “loophole” to break his contract, just that you cannot contain the leak once it occurs. You cannot punish C or D or n. You can only punish B repeatedly, which doesn’t create copyright. If you agree, be a man, admit it, and move on.

Sasha Radeta October 25, 2006 at 1:08 pm

Jordan,

YOU SAID: “technically said contract would be valid, and it would be valid for B to pass said contract to C (assuming it’s not forbidden in the contract with A”

End of discussion. Such contract is technically valid, and I didn’t misinterpret you. Also, it would be insane to argue in advance that some contract is bad for publishers – they can decide for themselves.

As far as your “loophole” goes – the term is misleading you. There is no loophole in our case. If person B causes “leak” which results in my serious economic loss – only person B is liable for any contract violations. I don’t want to punish C or D, or n, since they are not the a-holes (excuse my French) who broke my contract. In other words, person B will be fine, as long as he/she doesn’t act as a contract violator. If someone else (C) acts against the will of the person B – and causes liability by stealing information – person B is completely safe and can hold C liable for any damages that were caused to me. So I will admit that you totally misunderstood what “loophole” means and I’ll move on.

Jordan October 25, 2006 at 1:22 pm

Sasha,

If someone else (C) acts against the will of the person B – and causes liability by stealing information – person B is completely safe and can hold C liable for any damages that were caused to me.

This only applies if B and C have a contract similar to A and B. If no contract, then no liability can be sought by B because C broke B’s “will.”

For example: I just might make a bet with somebody that the Mariners will win the World Series next year. If I find someone who will take my bet, and I lose, I’ll hold the M’s liable for breaking my will and causing me liablity.

Without a contract, this is the same situation, since you cannot “steal” information–it is non-ownable.

Sasha Radeta October 25, 2006 at 1:45 pm

Jordan,

You totally misunderstood what is the “theft” in our case (when C acts against the will of B). It is not “information theft” that occurs here – I referred the actual trespass against my property that B uses. Information does not hang out in the air – it is stored somewhere (either in our brain, or on a physical medium). If C obtains information from B by trespassing, he will be liable for any resulting damage (amounting to all produced copies and/or profits they yielded). You can’t argue with that. There is no shame if you just stop repeating the same refuted objections.

Jordan October 25, 2006 at 1:52 pm

This is my last post on this thread.

Sasha (two posts above): “…causes liability by stealing information…”

Sasha (last post): “It is not “information theft” that occurs here”

Gee, wonder why I misunderstood.

I guess we’re pretty much in agreement on the whole third-party business. Goodbye.

Sasha Radeta October 25, 2006 at 2:05 pm

You misunderstood because you assumed that according to my views information just hangs out in the air. When I said “stealing information” – I clearly referred to a trespasssing against the property that contains information. Is it better now?

I am glad we finally agree on this whole issue. Nice talking to you.

greg October 28, 2006 at 9:27 am

Sasha> If C obtains information from B by trespassing, he will be liable for any resulting damage (amounting to all produced copies and/or profits they yielded).

If the copies are already out the door to D, E, F, …Inf, then only ill-defined profits could be recovered. D, E, F, …Inf, can then make countless copies while violating no contract. C will simply be bankrupted.

BTW, I think Stephan is trolling you with a new IP thread.

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