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Source link: http://archive.mises.org/6000/owning-thoughts-and-labor/

Owning Thoughts and Labor

December 11, 2006 by

The issue of whether non-scarce things like thoughts or labor are ownable has arisen in recent debates–see, e.g., Thoughts on Intellectual Property, Scarcity, Labor-ownership, Metaphors, and Lockean Homesteading; Intellectual Property and Think Tank Corruption; and New Working Paper: Machan on IP.

Johan Ridenfeldt called to my attention recently a 1988 panel discussion on ethics with Rothbard, Hoppe, David Gordon, and Yeager, which has this exchange:

Question: I have a question for Professor Hoppe. Does the idea of personal sovereignty extend to knowledge? Am I sovereign over my thoughts, ideas, and theories? …
Hoppe: … in order to have a thought you must have property rights over your body. That doesn’t imply that you own your thoughts. The thoughts can be used by anybody who is capable of understanding them.

This is compatible with (and, of course, pre-dates) my own views on property and scarcity. As usualy, Hoppe got it right early on.(See also Hülsmann’s Knowledge, Judgment, and the Use of Property, at pp. 44, and my Knowledge, Calculation, Conflict, and Law, p. 58, discussing the acquisition and use of knowledge being a mere technical problem.)

My view, as I argue in Against Intellectual Property, is that only some kinds of “things” are ownable in the first place. That is, before you ask who is the owner of a thing, it first needs to be established that the thing is ownable–the type of thing that property rights apply to. This is one mistake, in my view, in Rothbard’s attempt to derive a version of “copyright” (but which really also seems to include patents, since he thought it would cover inventions too). Rothbard assumes (as I explain in detail in the above paper) that where someone contracts with a novelist to buy only a single copy of a book and not to copy it, a third party may also not copy the book because he only has the rights that the customer had. This implicitly assumes that knowledge is ownable.

I think Machan also makes the mistake of implicitly assuming that that any “thing” you can conceptualize or name “exists” and “thus” can be owned. Such as a novel, or poem, or invention. And if these things are ownable, naturally, the person with the best connection to or claim to this thing is its creator. As Machan notes,

the status of something as private property appears to hinge on its being in significant measure an intentional object—its status as a private owned entity has to do with in what mental relation is stands with an agent. But then it would seem that so called intellectual stuff is an even better candidate for qualifying as private property than is, say, a tree or mountain. Both of the latter only come to be related to human intentions, whereas a poem or novel cannot have their essential identity without having been intended (mentally created) by human beings.

(This is somewhat reminiscent of what Rand did when she actually elevated patents over mere property rights in tangible goods, when she wrote that “patents are the heart and core of property rights.” See. p. 18 of my Against Intellectual Property article linked above.)

The problem here is it just assumes any “thing” you can identify conceptually may be owned. One problem with this is that it seems to make reality depend on the way we name or conceptually identify things. If I call or understand your output as a “novel,” then the “novel” is the unit. But just because this suffices for conceptual understanding of the world does not mean there is some “ontological” class of entities called “novels” that may be owned. In fact our concepts are use to refer to many phenomenon in or aspects of reality–truth, love, the-fact-that-I-woke up this morning, the age of the earth, my favorite drink. Are these things ownable just because they are “things” that can be conceptually identified? I don’t think so.

When you ask what things are ownable, before asking who the owner is, you realize the criteria is bound up with the purpose of property rights, which is to assign owners to avoid conflict; that is, they pertain to the types of things over which there can be conflict–that is, to rivalrous (scarce) resources. Clearly not to facts or memories or recipes or patterns or information. So you never get to the question of who owns a poem. It is simply not part of the class of ownable things. Call it a thing if you like; say it “exists”; fine by me. But it’s not an ownable thing.

If you restrict the ownership inquiry to scarce resources, you see the question of “creation” never really comes up, strictly speaking: as I have noted before, the focus on “creation” as an independent source of ownership is confusing and flawed. Actually, it is first use that is the key (as elaborated in my article How We Come To Own Ourselves). This is sufficient to allocate title to any particular scarce resource in question (the body is a special case). Creation, it turns out, is neither necessary nor sufficient: for example, if I am the first to homestead an apple, I own it even though I didn’t create the apple (yeah, you can torture language to try to say you “created” it in a sense since your creative efforts or “labor” were needed to recognize the opportunity etc., but let’s face it: you didn’t create the apple). So creation is not necessary. And if you create a statue in someone else’s granite slab, you don’t own it–so creation is insufficient. By contrast, if you create a statue in your own granite, you own the resulting statue, but not because you created it–because you already owned the granite, but merely changed its form.

Randians justify rights based on man’s “need” to be “productive” etc. I find this a very flawed and non-rigorous approach. It is what leads them to focus on creation as the touchstone of ownership; and this is why they are so eager to grant rights in IP–because yes, these things are “created” moreso than unowned scarce resources in the wild that are found and homesteaded.

{ 190 comments }

Sasha Radeta December 14, 2006 at 11:04 pm

rtr and Peter,

Please stop embarrassing yourself.

RADIATION IS A FORM OF ENERGY. That is physics 101. You have radioactive materials – but radiation they emit is just a form of energy – and to be affected by radiation you don’t have to swallow-up any materials like Litvinenko.

You totally missed my point and how it pertains to argument about energy ownership and trespassing (versus nuisance). But first you should learn that radiation and electric energy is not material.

—–

As far as copyright goes, like I said:

If you VOLUNTARILY agree that you purchase only non-commercial use of some product – and that all profits from any unauthorized replicas will be forfeited to the author – THERE IS NO SERVITUDE OF ANY KIND.

That is strictly a voluntary free market contract. If such contract were not be enforceable, than no contract would ever be enforceable and private property could not be protected.

Like I said, Rothbard explained how copyright logically emerges form property rights and voluntary contracts. DO YOU NEED A QUOTE FROM ROTHBARD, or you will keep mentioning “Ethics of Liberty,” without logically or factually denying anything I said?

Sasha Radeta December 14, 2006 at 11:28 pm

Not to forget this:

If a contract specifies that you purchase only personal use of a product, but you use commercially – you are committing a theft! According to Rothbard (and common sense) “a contract should only be enforceable when the failure to fulfill it is an implicit theft of property”. In the case I mentioned, an implicit theft occurred.

What you guys also don’t realize is that by stating that you will forfeit any future unauthorized replica to the author – YOU AGREED TO TRANSFER PROPERTY TITLE OF THESE ITEMS TO THE AUTHOR! It does not matter that you owned the means of production that were used to produce such replica. You VOLUNTARILY agreed that items will be the property of the author – and if you decide to keep them you are committing the theft. So this issue has nothing to do with morality.

If your marriage contract states that in case of violation on your part you will pay x amount of dollars to your spouse – YOU CONDITIONALLY TRANSFERRED THE PROPERTY TITLE OVER THAT MONEY. In the event that these conditions occur (if you cheat) that money automatically becomes her property. Guess what: if you decide to keep that money, you are committing a theft.

During our previous discussion, Kinsella even mentioned gambling contracts that must be enforced based on conditional ownership transfer, but I won’t confuse even further. It is obvious that you guys are lost and got into this topic by accident.

rtr December 14, 2006 at 11:38 pm

Since when is energy not material? It’s quite clear that the idea of a recipe cannot ever be transferred into the physical world. Therefore, the ideas of recipes are immaterial. It’s also quite clear that energy exists in the physical world. Therefore, energy is material. Energy can and does touch all manner of physical objects. Ideas of recipes do not and cannot touch physical objects.

Let’s see, there’s absolutely zero problem with trade in regards to protecting private property. By definition, this is exchanged for that. And that’s that. Could be possible the previous libertarian-austrian generations messed up contract the same way they messed up money. Personal note: Add contract to the list along with money, of things that need to be re-examined from the bottom up.

How odd that trade requires zero enforcement whatsoever, yet contract requires enforcement? Trade naturally occurs because both parties benefit, become wealthier having traded.

Sasha Radeta: “If you VOLUNTARILY agree…”

If you voluntarily agreeD, past tense, then you should have traded wholly then and there. Voluntary agreeMENT, present tense, and future tense, assumes continued VOLUNTARY agreement. That’s why people can and do quit their jobs. That’s why people can and are fired from their jobs. That’s why people can and do divorce.

Sasha Radeta: “…THERE IS NO SERVITUDE OF ANY KIND.” Assuming, of course, CONTINUED voluntary agreement. Guess if someone changes their mind, there goes the continued voluntary agreement, and in comes the SERVITUDE.

Sasha Radeta December 14, 2006 at 11:58 pm

rtr,

Stop and think for a moment. Energy is not a matter or material. Matter is a stable pattern of energy, not vice-versa. Anyhow, RADIATION IS ENERGY and not a material.

So you can conclude that you can commit a trespass and maximal aggression (murder) with energy, and according to Kinsella you can claim that you don’t possess energy… According to him, claiming that radiation violated your property is analogous to claim that “aura” violated you. On the other hand, he thinks that the electronic information can trespass against your property…. That was my point about radiation.

—–

Anyway, you said that: “trade requires zero enforcement whatsoever.” ARE YOU KIDDING ME??? If you pay me $1,000,000 to perform my services for you in seven days, but I fail to show-up on that day and instead drive-out to Mexico, you think that enforcement is not necessary??? My god, you are a joker! You think that force would not be necessary at all to protect private property…. how funny, considering that scarcity and conflict motivated property creation at the first place (but conflict resolution principles do not determine property distribution as communist claim).

Like I said, if you agreeD (past tense) that you will transfer the property title over some items upon the satisfaction of some conditions – those items are no longer yours when these conditions occur. If you said that any unauthorized replica produced by you will become my property – by finishing your production that item becomes mine. You conditionally transferred that property to me.

If you purchase only a certain use of my book – unlike my publisher, you did not pay for a right to commercially use it. If you violate your contract and you use that product contrary to what you voluntarily paid for and agreed upon – you are in fact committing a theft.

That is it. No matter how hard you try, you can’t change these simple basics of contract law.

Peter December 15, 2006 at 12:26 am

Please stop embarrassing yourself.

RADIATION IS A FORM OF ENERGY. That is physics 101. You have radioactive materials – but radiation they emit is just a form of energy – and to be affected by radiation you don’t have to swallow-up any materials like Litvinenko.

Back to physics 101 for you. “Radiation” is a rather general term; in the sense you use it, it covers three main things, termed alpha, beta and gamma – alpha particles are ionized helium, beta particles are electrons, and gamma is electromagnetic radiation. Of the three, only gamma radiation is classically “energy”; alpha and beta are definitely “matter” (though for any physicist since the early 20th century the distinction is somewhat fuzzy anyway). Alpha, being extremely massive particles, is the most harmful, but for the same reason (large cross-section for interaction) it doesn’t penetrate very far, so alpha sources (such as polonium-210) need to be ingested to be really harmful. Most EM (gamma) radiation that isn’t stopped by your skin (sunburn!) passes harmlessly right through you.

Sasha Radeta December 15, 2006 at 12:37 am

Peter – great! I wanted you guys to check the facts.

Alpha radiation is only most harmful if it is ingested into human body. If it is external, it amounts to an X-ray.

On the other hand, gamma radiation (ENERGY) is by far the most dangerous when it comes to external radiation of human body. And I talked exactly about that in my example. So if my gamma radiation violates you – it’s not the same as if my “aura” violated you. Do you agree? Yes? That was my point.

Sasha Radeta December 15, 2006 at 12:46 am

Correction: it (external alpha) does not amount to an X-ray (gamma)

—-

Anyway, we have to stop with this, because Stephan will accuse you of scientism.

rtr December 15, 2006 at 10:28 am

Energy is indeed matter or material. Energy is traded, energy is bought and sold. Energy exists within the physical material world. Energy effects the properties of other physical material objects.

If someone were to release a dirty bomb on your property it would be absurd to claim there is no effect on the physical properties on the land. It’s absolutely absurd to think radiation is immaterial in the way thinking thoughts is immaterial. I can think as hard as I want about making your land radioactively poisoned and that will have no effect whatsoever on your land. That’s why thoughts and ideas are immaterial. But if radiation is released on your land there are absolute discernable measurable effects, and thus radiation is material.

——-

Sasha Radeta: “Like I said, if you agreeD (past tense) that you will transfer the property title over some items upon the satisfaction of some conditions – those items are no longer yours when these conditions occur.”

And like I said that logically leads to rape the moment a person changes their mind. I gave you a specific example of a woman promising sex to a man. That’s a perfect example of a typical contract. You claim a woman’s body is thus no longer hers after such a promise, and that is without question servitude. She must be forced to have sex with someone she no longer wishes to according to your interpretation of contract. I gave you plenty of other specific concrete examples as well, such as quitting a job, being fired from a job, and divorce.

Clearly if contract can result in rape, contract can likewise result in theft, which is what you advocate by your confiscatory claims against material property not owned by you but owned by others.

The contract is over once continued voluntary agreement is over, whether the terms of the contract have been fulfilled or not. It’s clear you wish to abuse the easily understood notion of voluntary agreement by wishfully pretending past voluntary agreement applies to future voluntary agreement. Once something has been exchanged for something else, that is a completed trade, a final transferance of property.

If you gave something but did not get what you were supposed to be given in return for what you gave, the only claim you have is to what you originally gave if what you were supposed to be given in return is not forthcoming. But that is not an example of trade, that is an example of an uncompleted trade. There’s a reason such things as deposited collateral evolved. Deposited collateral is an example of something that has been traded, exchanged. What need would there be for such free market innovations as reputation, credit risk bureaus, etc, if contracts were enforced after continued voluntary agreement ceased to exist? That’s why trade works, and is without exception mutually beneficial. You can’t get blood from a stone.

And again, at a minimum, you failed to establish the existence of immaterial “intellectual property”, and immediately went into a defense of “contract”. “Contract” is clearly something entirely different than “property”. Hence, why contract does not contain the name or idea of property.

Unless you can specifically answer how forcing a woman to have sex against her will is not coercive involuntary rape, even if she at prior agreed to the act, this discussion is over.

Sasha Radeta December 15, 2006 at 10:58 am

rtr,

You can say that matter is form of energy – but not vice versa. Nevertheless, you basically said that energy can be owned and traded – implying that human energy and its labor is owned and traded. That confirms Hoppe’s view on labor ownership and denies Kinsella’s view (look at his introduction of this thread).

——–

Again, you are misunderstanding the basic purpose of free market contracts. Some sales are final, while others are not – depends on a contract. You cannot “change your mind” in order to justify contract violation.

Do you think that a businessman can just “change their mind” during their contractual obligation to deliver some purchased goods – and than just take into their possession someone else’s property? You are so wrong, but we’ll come back to that later.

If you read Rothbard more carefully, you would find the answer for your sex dilemma. If a person is paid for his services but he fails to deliver them – you cannot force them to perform any service, because that would constitute enslavement. If you order a painting from me and I fail to make one – you cannot force me to paint. BUT GUESS WHAT… I would owe you damages for undelivered goods or services that belong to you according to our contract. Woman in your example would not be forced to perform labor (sex) – but she would owe me damages for violation of contract – just like an actor would be sued by his studio.

But now think about copyright example. You cannot just transfer property title on some good or service during a voluntary – and than “change your mind” and keep it. If that was the case, there would be no private property protection. You can change your mind and try to return copyrighted item to its owner (if he chooses to accept it back – he doesn’t have to if sale was final). But you certainly cannot “change your mind” and than use his item in ways that you didn’t pay for (more expensive, commercial use). You cannot “change your mind” in order to commit theft – in any kind of market transaction or a strict conditional contract (like labor, marriage, or even gambling contract according to Kinsella).

Regards.

Sasha Radeta December 15, 2006 at 11:12 am

I am glad if “rtr” abandoned his statement that trade does not require any enforcement. That was funny.

Once he understands that you cannot pay for one kind of use of a product and than “change your mind” and use it in a different, more expensive way without paying (just like you cannot pay for an economy class airline seat and than “change your mind” and sneak into the first class)… once he understands that you cannot “change your mind” after property title is transfered to someone else – and keep someone else’s property (just like a mob cassino that refuses to pay-out someone’s honest winnings)…
… He will become the greatest copyright advocate. I’m positive :-)

Sasha Radeta December 15, 2006 at 1:21 pm

Just to prevent any potential confusion and fruitless discussion that can never deny that copyrights could and would exist in a perfectly free market:

- Professional soccer team Real Madrid cannot just buy services from another team’s player, like Ronaldinho of F.C. Barcelona, without paying damages to that organization specified by Ronaldinho’s contract with Barca.
- Professional player like Ronaldinho can stop playing during his contract – and no one can force him to play – but he will suffer consequences that are stipulated in his contract (no pay, and no chance that he can play for someone else without paying damages to his team).

Same goes for any kind of good or service – or even a lottery (gambling contracts) – you cannot legally violate the specific letter of some contract and unlawfully take someone else’s legally transferred property, without paying some damages. When those damages are specifically expressed in your contract – the case is absolutely straightforward.

Copyright contracts would not specify prohibited uses, but they would also specify damages in case of violation of these terms (conditional transfer of property to the other side). For anyone who cares about private property rights, copyright contracts must be enforceable without any controversy. Nonsensical attacks on private property rights expressed in voluntary terms of use (copyright) are essentially the attacks against free market economy.

rtr December 15, 2006 at 1:57 pm

Why are you again obfuscating with the use of the term “copyright”? You’re talking about “contract”, plain and simple.

Sasha Radeta: “Do you think that a businessman can just “change their mind” during their contractual obligation to deliver some purchased goods – and than just take into their possession someone else’s property?”

Nobody ever said they could just take into their possession someone else’s property. If they change their mind, they return the original property, and that concludes the cancellation of the contract.

Sasha Radeta: “If a person is paid for his services but he fails to deliver them – you cannot force them to perform any service, because that would constitute enslavement.”

Good, we finally agree. Remember this statement, because it’s going to destroy your notions of contract. We’ve already established that things such as “copyright” and “patent” are immaterial non-property, and are now focusing soley on contract, on agreements to exchange, and the voluntary vs. involuntary nature of those contracts.

Sasha Radeta: “BUT GUESS WHAT… I would owe you damages for undelivered goods or services that belong to you according to our contract.”

Hmmmm, “damages”. A matter of free voluntary exchange or a matter of arbitrarily awarding a party whatever one feels like as a self judge, jury, and executioner, or third party judge, jury, and executioner? Now what do “damages” have to do with returning your property? Why the use of the word “damages”? Again, you want to confiscate that which does not rightfully belong to you. What other reason would there be for using a vengeful term such as damages. And unfortunately you are in violation of our agreed standard of voluntary agreement in regards to servitude: “If a person is paid for his services but he fails to deliver them – you cannot force them to perform any service, because that would constitute enslavement.” Asking for damages, above and beyond what belonged to you prior to the beginning of the contract, constitutes forced performance of service, which we agree, is servitude.

Sasha Radeta: “But now think about copyright example. You cannot just transfer property title on some good or service during a voluntary – and than “change your mind” and keep it.”

First, let’s fix that first sentence: “But now think about *contract* example.” Fixed.

But of course, you cannot take that which is valued more to you without also giving what is valued less to you. That’s not trade. That’s indeed theft. And neither can you take back more than what was taken from you, for that would also be theft.

If you want to talk about specific terms of use contractual agreements, then you are talking about leases, since property is not being traded but merely loaned. If you want to cancel the lease of your car rental, or you want to cancel the lease of your software operating system rental, then you can cancel that contract at anytime, whether you are the buyer or whether you are the seller. Of course, you get your property back. And that concludes the business. Unfortunately for you, there is no such thing as “IP” that was traded as IP is immaterial non-property. And again, you have no say what others do with their real existing material property. It doesn’t belong to you, and you cannot subject others to servitude with false contractual claims that are in violation of the standard of voluntary agreement.

Dan Coleman December 15, 2006 at 2:04 pm

Sasha,

Let’s say that, in a fit of bad judgment, you agree tomorrow to become my slave for life in exchange for a pencil. You voluntarily agree that any and all products of your labor in the future belong to me in exchange for the pencil, and furthermore you will do whatever I tell you.

A month later, you come to your senses and realize what a terrible mistake you’ve made, and you wish to cancel the contract.

In your model: I can get my pencil back, but I can no longer force you to do whatever I command you to. However, you still owe me the *damages* of the unfulfilled contract — that is, any and all products of your labor are hereby my property. The property rights for anything that you do from now on have *transferred* to me, as per the agreement, regardless of whether you renege later. You are not forced to do anything, but if you do whatever you do belongs to me. Poor Sasha.

In the alternate model: I get my pencil back, I can no longer force you to work for me, AND the fruits of your labor still belong to you. What *is* returned are the original pieces of the contract: my pencil and your liberty.

Am I seeing this correctly or would you reason differently?

rtr December 15, 2006 at 2:23 pm

That’s a crystal clear summary Dan Coleman.

Stephan Kinsella December 15, 2006 at 5:17 pm

Sasha, you are very confused and your ideas and argumenation style are shoddy. You are trying, but like most engineers you are just out of your depth.

If you pee on possum, you can claim that you own it at that moment. But unless you establish some kind of control by catching it, putting it in your fence, and demonstrating your ownership (like with a collar) someone else may rightfully establish their adverse possession over your possum. All these actions “fencing, tying, controlling” – they all represent labor that we own according to Hoppe (and according to physics, if you claim that we own our physical bodies).

“represent” labor? What do you mean? I think labor is just what you do with your body. You could also call it human action. Who cares? It does not mean you “own” your actions.

You transfer something you own (and Hoppe says we own labor, as evidenced by its market exchanges for money) – to something you don’t own.

Wrong, he does not say or imply this.

Since I already quoted Hoppe’s statements in which he refers to labor as to a factor of production and good that we sell and OWN – I really don’t have to spend any more time on that.

Kinsella may want to spam this discussion,

spamming my own post? hahah

but I clearly demonstrated that Hoppe denied Kinsella’s silly claim that we don’t own our own body’s physical output (labor).

no, and you are too thick to realize this.

I even emphasized instances in which Hoppe explicitly mentions labor ownership, contrary to what Kinsella claimed about this author. Enough of that….

Naaah, pettifogging.

Kinsella is trying to misinterpret my statements about copyright. I never said that a third party is bound by contract between two individuals.

Then, there is no way to recreate a version of copyright or patent by contract; and you are now disagreeing w/ Rothbard. When you figure out what you believe, let us know.

Some copycat can unlawfully obtain my book from my publisher (the person who accepted to compensate me in the amount of all unauthorized copies originated from that item). If this thief actually makes some unauthorized copies – I will still demand compensation from my publisher based on our contract, while the will in turn demand compensation for damages from this thief (in order to pay his obligation to me)

Yes but it’s not always a thief. If A loans B his unpublished book but on the condition he not let anyone else read it, then B loses it or leaves it on the ground, or maliciously publishes it on the Internet, people who find it or read it are innocent, and are not violating anyone’s rights by using the knowledge/information they now possess…. riggghhhht sasha?

Similar terms of use always prevent violations of any kind of contract by some third party. If third party violations of contract were excusable – any contract would be absolutely meaningless and totally unenforceable.

You have no idea what you are speaking of.

Sasha Radeta December 15, 2006 at 5:47 pm

You guys are funny.

Just read my last comment and you will realize how absurd your comments are. And you can avoid “poor Sasha” comments when you are obviously clueless about contract law.

Try to answer the following question: can you legally change your mind when you buy your airline coach ticket – and than just go into the first class without paying anything, refusing to leave?? It’s the same with copyright. If you use copyrighted item in a commercial way – you are committing a theft, because you didn’t pay for that kind of use.

Or try to imagine the following scenario: you decide to sell your house for $100,000. You accept that money and you even transfer the property title on someone else. But than you realize that prices of houses are going up and you decide that you made a bad decision – do you think that you can just refuse to move out???? I’m sorry to tell you this, but that house is no longer yours… Property title transferred and you cannot demand that someone to correct your stupidity (although government often does this and we consequently see more stupid decisions, like in rebuilding of New Orleans). You will have to move out.

Just like that – based on your copyright contract – unauthorized copies are not your property. They are the property of the original item’s author. Or you can think of an example with a lottery or a casino winner.

rtr says:
———-
“Hmmmm, “damages”. A matter of free voluntary exchange or a matter of arbitrarily awarding a party whatever one feels like as a self judge, jury, and executioner, or third party judge, jury, and executioner?”
———–

HOLD ON ONE SECOND! What judge, jury, executioner? Your copyright contract – that you voluntarily agreed upon – specifies what damages will take place in cases of violations. Just like one soccer team cannot purchase the services of someone else’s player, without that player (or other team on his behalf) paying contractually specified damages to that team.

Like said – not all market-exchange contracts are the same but they all have in common exchanges of property title exchanges. In Dan Coleman’s example, after you sell your labor services for a pencil, that pencil becomes your property – and you owe services to your buyer. If you decide not to provide your services you will have to pay damages to your buyer. If these damages were specified by contract – you will pay exactly those damages. If these damages were unspecified – you will pay the amount equivalent to current value of your non-provided service and any other cost that the other side might have incurred due to your cancellation (it may be 1 pencil or more).

There is no confusion there and no contradiction with the copyright contract. Your attempts to deny centuries of legal reality based on pure logic are futile and ridiculous.

Sasha Radeta December 15, 2006 at 6:01 pm

Stephan,

You are just wasting space here. You did not say anything that would contradict anything I stated. Contractual copyrights were advocated by Rothbard, and they are absolutely possible. I provided examples on how these contracts would hold. The only objection that you could think of is your scenario in which my customer (publisher for example) looses the book – and then other people copy it. But as I explained – those people would not be liable to damages to me – the person who neglected my property and lost it would be liable. That’s why publishers are generally careful with manuscripts and they cannot defend themselves based on “absent mindedness”. It is not the duty of legal system to subsidize idiocy, regardless of your interest in that.

Sasha Radeta December 15, 2006 at 11:57 pm

Suma sumarum,

In Kinsella’s imaginary world, an author may submit his manuscript to a publisher – and than publisher may “loose” it and from that point unauthorized copies will flood the market, not giving a single penny to the author. Knowing this, this author may try to get a large sum of money from the publisher, but he will likely not get – simply because unauthorized copies will also reduce any profit they make. In short, in Kinsella’s world poor authors and publishers do not have solution for this problem. They are just scratching their heads, while authorship is dying out.

In the real world, however, people are much more innovative and they are able to find a solution to this problem (especially in the absence of coercive state). Authors can simply formulate copyright contracts with publishers, and they would create similar contract with retailers in order to protect themselves, retailers with consumers, and so on. Just based on contract law, the authorship would survive and we would avoid dark ages. Private property and contracts always save the day.

If Mr. Kinsella objects to the real world scenario – based on the notion that these contacts would punish honest people who happen to loose the book – he should reconsider his skepticism. If the state was abolished and private copyright contract were taking place, the importance of not neglecting the author’s work (book for example) would become so great that people would report their lost items as stolen. As you know, in private copyright contracts any copyright violation must be compensated to the author by the other side in contract – and that person (who lost the book) would have a case against the third party thief (“finder”) who caused the damages. Bearing that in mind, people would naturally hesitate before they just take and keep someone else’s lost property (which is likely to be reported as stolen) – and knowing that they could be responsible for large damages, it would make no sense for them to engage in gross copyright violation.

Therefore, private contracts would provide strong safeguards against copyright violations and they would save private property rights and incentives for creators.

Sasha Radeta December 16, 2006 at 1:04 am

It was brought to my attention that one of my sentences can be (mis)interpreted as a rude personal attack. I just want to say that I don’t want to insult anyone (at least not with primitivism and epithets) – I am only attacking arguments that I find wrong.

Regards and thank you all for your time.

Peter December 16, 2006 at 5:10 am

In the real world, however, people are much more innovative and they are able to find a solution to this problem (especially in the absence of coercive state). Authors can simply formulate copyright contracts with publishers, and they would create similar contract with retailers in order to protect themselves, retailers with consumers, and so on.

But if such contracts are, contra Rothbard, to be upheld, why would the publisher agree to a contract that left him liable to essentially infinite “damages” if the manuscript “leaks”? If he would agree to that, why wouldn’t he agree to pay the author a large sum up front (which you already dismissed with “he will likely not get” in the previous paragraph)? Of course, anybody in their right mind would prefer the latter (with the large payment fixed and known in advance) to the former! And how would mass-market retailer contracts with “consumers” work? Would individual customers be responsible for copies of the book sourced only from the copy they bought, leaving you with the virtually impossible problem of proving which particular buyer of a book that sold 40 million copies “leaked” it, or would all buyers be held responsible, en mass, for any copies? In the former case, buying a cheap paperback could, through no fault of the buyer, end up costing him millions of dollars? Nobody would ever buy a book, authors would never get a cent, and your “copyright contract” would utterly fail in its supposed purpose. In the latter case, you’d have to price the penalty into the sale price of the book, and then buyers, having already paid it, have bought the right to make copies!! :-)

Just based on contract law, the authorship would survive and we would avoid dark ages.

Well, that’s just silly. There’s no reason at all to believe that “authorship would die out”, or even decrease, in the absence of copyright, or crazy “contracts”

Private property and contracts always save the day.

When properly understood, yes. Not what you have in mind.

Sasha Radeta December 16, 2006 at 9:30 am

Peter said: But if such contracts are, contra Rothbard, to be upheld, why would the publisher agree to a contract that left him liable to essentially infinite “damages” if the manuscript “leaks”?

You are wrong, because we’re not talking about “infinite” damages. Contractual copyrights presuppose finite, strictly defined, and conditional, property transfer. Just like a lottery or a casino winner does not have an infinite claim, neither does the copyright holder. He just has a claim over replicas of his original item – based on conditional property title transfer that you voluntarily agreed upon in a completely free market exchange. Essentially, his claim over those items is not weaker than a claim of a person who purchases something and obtains property that needs to be delivered.

If we agree that I will fine you $50 if you trespass against my property – that is not an “infinite” claim. It is a conditional property transfer that can be prevented at any time – by you not trespassing. But if you satisfy the conditions that generate this $50 claim – that money becomes my property and there is nothing anyone can do about the outcome of this free-market contract.

Any actions in violation of copyright terms are essentially theft – and if we could just “upgrade” our goods or services without ever asking or paying for it, there would be no private property protection and no sense in any market transaction.

Peter said:There’s no reason at all to believe that “authorship would die out”, or even decrease, in the absence of copyright, or crazy “contracts”

Well, communists also claim that production would not stagnate if you completely abolish property and profit incentive for producers. But they rarely provide any meaningful argument in support of such claim. I explained how in absence of copyright (contract enforcement) plagiarism could start at the manuscript levels, without paying a dime to the author. Why do you suppose that person will continue producing with the same motivation? Wouldn’t that be true of all producers than – as some communists claim?

But more importantly, you don’t offer any reason on why the author would accept such situation, and why he would not formulate terms of use which would prevent unauthorized commercial use of his items. You tried to say that these contracts would be unenforceable based on the notion that they are asking for “infinite damages” – but I explained that you are incorrect. Copyright is only requiring conditional and strictly defined property transfer of items that are produced in the violation of terms of use. These title transfers do not have to occur if a buyer does not commit a theft by using some item in ways he did not pay for.

Sasha Radeta December 16, 2006 at 12:39 pm

I missed this part from Peter. He says: If he would agree to that, why wouldn’t he agree to pay the author a large sum up front (which you already dismissed with “he will likely not get” in the previous paragraph)?

Why are you ignoring my explanation in the same paragraph? I said:
“Knowing this, this author may try to get a large sum of money from the publisher, but he will likely not get [it] – simply because unauthorized copies will also reduce any profit they [publishers] make.”

Even Aristotle in 4th century BCE knew why this situation would occur: value of inputs is determined by the value of final goods for which these inputs are used. If publishers did not have any copyright protection – they would earn little or no profits on sales of their copies, which anyone can copy as they please. Why would anyone pay a large sum of money for a manuscript that will yield little or no profit? This situation would naturally lead to an extreme stagnation, just like it happens anywhere when private property rights and free market contracts are not protected.

My objection to this situation is not “objectivist” as Kinsella tried to insinuate. When Mises said that that socialism would mean starvation for many and impoverishment for more – his critique was not “objectivist.” He was only applying logic and economic theory – the same objections that can be raised against a model in which copyright contracts are not enforceable.

I am still waiting for any argument that will prove that enforceable copyright contracts would be impossible or unlikely in a perfectly free market.

Stephan Kinsella December 16, 2006 at 2:36 pm

What poor Sasha can’t seem to grasp is this. Imposing penalties on a party to a contract for breaching it by “leaking” is one thing. Permitting either of the parties to pursue a *thief* (say, of a copy of a book) is one thing.

But to emulate copyright you *must* be able to penalize *innocent* third parties who are not parties to the contract. If you do not have this, you will not have any version of copyright. It is not enough to say that the buyer is liable if he leaks the information. It is not enough to penalize those who *steal* the book (from seller/author, or buyer).

Take this case. An author’s manuscript shows up on the Internet one day. It’s impossible to trace who did it. Under copyright law, people may still be prohibited from selling copies of this book; even of reading it, in theory; and of making new “derivative works” based, say, on the novel’s plot. Under a contract regime, the third parties can do whatever they want with the information they have. It is utterly irrelevant that the author might be able to find some negligent person who should not have leaked it. His main concern is the public,not the person who leaked.

Peter December 16, 2006 at 6:26 pm

If we agree that I will fine you $50 if you trespass against my property – that is not an “infinite” claim. It is a conditional property transfer that can be prevented at any time – by you not trespassing. But if you satisfy the conditions that generate this $50 claim – that money becomes my property and there is nothing anyone can do about the outcome of this free-market contract.

That’s an entirely different argument. If you let me read your manuscript, and someone else reads it over my shoulder, possibly without my knowledge, and then publishes it, your theory is that I should be liable to you for all of the published copies, no? Doesn’t the amount I “owe” you depend on how many copies he sells? Or would your contract just say “if it leaks I get $50″? I’m pretty sure you mean the former, hence “infinite (really: unbounded) damages”. It’s not at all the same thing as the (also nonsensical) “trespass and pay me $50″ “contract”, since at least that one doesn’t make me pay you if someone else trespasses on your land!

Why are you ignoring my explanation in the same paragraph? I said: [...]

I’m not ignoring it. I just can’t see the difference between the publisher not wanting to pay a lot of money up front for a manuscript he can’t be certain of profiting from (which is always the case, BTW, copyright or no!), and the publisher not wanting to agree to a contract which has him paying out a probably even larger amount in the event that he doesn’t make a profit. Or rather, I can see a difference, but the former seems vastly preferable to me; I can’t see why you think any publisher would prefer the latter!

Sasha Radeta December 17, 2006 at 1:10 am

“Poor” (I guess that’s how we’re gonna call each other) Stephan,

As I repeated hundreds of times by now, copyright contracts would only apply to sides in that contract. As far as third parties go – the buyer would try to recover these damages from that party in cases of theft. As far as your example with the Internet goes – there are three things to consider:
- There are many ways in which you can trace who posts what online
- Even if we cannot trace copyright violator – the situation is still the responsibility of the person who neglected the author’s property and allowed this to happen. I’m not sensitive to absent-mindedness and it is not a valid excuse for contract violations (otherwise, everyone would use that excuse and all contracts would be meaningless).
- The situation with unknown copyright violators is far from perfect with today’s system and privatized copyright would not be any less efficient. But that concern is minor compared to disastrous effects that copyright violations could have on creators in the marketplace.

—————————————-

Peter,

Just as number of trespasses is finite – so is the amount of damages that can be caused by copyright violations. The example in which I would fine you $50 for each trespass you make was not “nonsensical.” Since you sign a contract by which you are responsible for my item – any trespass that occurs will be your responsibility. Resulting damages are not “infinite” as you claimed – and it really does not matter whether you committed a violation or you let someone else do it (if we excuse people from third party violations – all contracts would be meaningless and you could always find someone to violate them for you). If you are innocent in this matter – you will settle your damages with the guilty side.

- With enforceable copyright contracts, the publisher knows that if he chooses the right product he may make a profit. His success depends on his understanding of market demand (like today). The publisher will accept the copyright contract with the author – if he is not dishonest and has no intention of violating it. He is also aware that the copyright contracts will also protect him, when he creates them with his customers (retailers).
- Without copyright protection the publisher knows for fact that he will make little or no profit. He knows that the supply of his product can be enormous (prices approaching and reaching zero) – so it would not make any sense for him to pay anything significantly higher than zero to the author. Read Aristotle.

If you don’t see any difference between the two abovementioned scenarios, you have bigger troubles than simple misunderstanding of economics.

Stephan Kinsella December 18, 2006 at 12:14 am

Sasha, “As I repeated hundreds of times by now, copyright contracts would only apply to sides in that contract.”

I do not think you comprehend that this means not only a rejection of modern copyright law, and also adopting the very consequences you attack other anti-IP types for (because without third parties being bound, copyright law collapses), but also it means you are now disagreeing with Rothbard, who did maintain that third parties could be bound.

Apply your “labor,” use your “energy,” and consult wiht your aura, to figure out what you really think now, Sasha.

Fred Mann December 18, 2006 at 3:56 am

Sasha writes:

“If we agree that I will fine you $50 if you trespass against my property – that is not an “infinite” claim. It is a conditional property transfer that can be prevented at any time – by you not trespassing. But if you satisfy the conditions that generate this $50 claim – that money becomes my property and there is nothing anyone can do about the outcome of this free-market contract.”

First off, I don’t think this can be called a “contract”, since there is no exchange specified. In a contract, the two parties each expect to benefit from the successful completion of the terms of the contract. In the above example, I can’t see what the potential trespasser stands to gain by NOT trespassing. Why would the potential trespasser (or anyone) sign this “contract”? Basically, it looks like I’d be signing up to be an unpaid security guard who gets fined if he falls asleep at the switch.

Anyway, what you are describing above is a trespass, which is *already* a violation of the law. It is an invasion of private property. There is no need to make anti-trespass contracts with your neighbors or the local population. Of course, the key here is that there is an invasion of private *property*. If you want IP protection, you have to show that ideas are scarce and can thus qualify as *property* (which you can never do), or make the utilitarian/consequentialist argument for violating private property “just this once” … “in the name of ensuring a sufficient volume of books exceeding x number of pages” , for example. This is also a bad idea, and unneccessary, as I briefly described in my earlier post to Sam.

With regards to your copyright scheme in which we can’t trace the leaker … what’s to prevent the AUTHOR from leaking his own manuscript, and thus collecting the leak fee himself? This way, he could be guaranteed to make some money on the manuscript, even if the publisher would have ultimately rejected it. He could also potentially still make large gains if it’s a runaway smash hit, depending on the terms of the contract (i.e. if the publisher(s) is held responsible to some degree for every copy). This is win win for the author. Literally any crappy manuscript (even 50 pages of nonsense) could earn *at least* a leak fee — possibly even from multiple publishers!! Hmmm….

In a sense, your trespass analogy is valid. In both cases, some (idiotic) party is signing up to be an unpaid security guard. One is guarding land, the other is guarding manuscripts.

I could go on, but it’s very late, and I probably shouldn’t be typing.

But you really need to think more about Kinsella’s point regarding the actions of innocent/unrelated third parties … (the key to copyright).

Sasha Radeta December 18, 2006 at 10:17 am

Stephan,

I explained why third party is not bound – but the system would not collapse – because third party trespassers would still owe damages to the side in contract (I also explained why third parties would be discouraged to keep lost items and to put them into commercial use). This is completely consistent with Rothbard’s faith in copyright contract… I only elaborated that position further, using the logic.

I know that the simple and logically impeccable truth about contractual copyrights destroys the obvious raison d’etre on mises.org blog of at least one person. I don’t expect that this person will have the courage to admit that he is wrong and to apologize for his baseless arrogance and rudeness. However, I know that this person recognizes that in all this time, he was unable to find a single logical lapse or a problem with contractual copyright. That is enough for me – it is satisfying to know that he is well aware of how inferior he was in this discussion, in spite of his mental defense mechanisms.

—-

Fred,

It was to late for typing. Read what I wrote to Stephan: there is not “third-party” controversy when it comes to copyright contracts.

You stated that contracts are not necessary to prevent trespassing, which is true. But if we have specific terms of use, that is a contract by definition. Copyright requires specific terms of use in order to specify what use of some product is permitted – and to prevent “third party” excuses for violations… There is nothing wrong with that.

Fred said:
First off, I don’t think this can be called a “contract”, since there is no exchange specified.

Oh, really? When you purchase my item for only certain, allowed uses – you don’t call this exchange??? You think that free-market exchange cannot include provisions that would specify damages in cases of violations??? That is completely wrong (look at the professional soccer example that I provided). Both side benefit from the market exchange of a copyrighted item (or exchange would not take place) – but this exchange would specify what commercial use of this product is not permitted – and you agree that this use (along with any products of this use) will belong to the author.

Remember that contracts, including market exchanges, may specify some benefit (consideration) to one side – in case that certain conditions specified in contractual exchange occur. You can take a lottery winner (exchange of money for a ticket) as an example or any kind of contract. By the way, Unlike Hoppe, Stephan Kinsella does not believe that you own your entire physical body (which includes energy and its output). If you insist that contracts must be exchanges of something – you imply that we own our labor, because we have labor contracts. Try explaining that to Stephan.

Fred also said: With regards to your copyright scheme in which we can’t trace the leaker … what’s to prevent the AUTHOR from leaking his own manuscript, and thus collecting the leak fee himself?<

What???? "Leaking his own manuscript"???? You can't be serious!

You didn't understand the problem with copyright violations at all. Author tries to sell his work to someone. But if copyright protection did not exist - the price of the final good (book) will approach and reach zero (supply can be enormous, because there is no restriction in unauthorized reproduction). Who in the right mind would pay large sum of money for a manuscript or a book - if he knows that prices will collapse, because buyers can make as many copies as they can - without paying him a penny?

Plus you mention some "leak fee". Hold on! Now you advocate contractual fees in cases of violations in terms of use (copyright)???? You are very confused.

Stephan Kinsella December 18, 2006 at 11:01 am

Sasha, “I explained why third party is not bound – but the system would not collapse – because third party trespassers would still owe damages to the side in contract (I also explained why third parties would be discouraged to keep lost items and to put them into commercial use). This is completely consistent with Rothbard’s faith in copyright contract… I only elaborated that position further, using the logic.”

This makes no sense. The danger to publishers and authors is not trespassers. It is innocent third parties who somehow learn of the information pattern–people who are not contractually bound, and who are not trespassers either, so that there is no action against them. If you are trying to say that such third parties are not bound, but that anything resembling copyright could still be maintained, you are just utterly confused. If you think that there are no such third parties–that they are all contractually bound, or some type of “trespasser,” again, you are totally confused.

The only thing that prevents me from writing and selling a novel about the further adventures of Luke Skywalker is copyright law–this is a “derivative work” of George Lucas’s copyrighted story. Without copyright law there is nothing to stop me from writing this. I never signed an agreement with Lucas nor did I steal the information.

If you are only advocating legal measures directed at contracting parties, and actual trespassers, then this is compatible with libertarianism, but it denudes copyright law. Moreover, please note this is incompabible with Rothbard: he thought the third party could be bound even though he was not a trespasser or a party to any contract.

So make up your mind please.

Sasha Radeta December 18, 2006 at 12:33 pm

Stephan,

I never said that third parties are contractually bound by terms of use – and by repeating this nonsense you don’t contradict anything I said. I explained why Rothbard’s position can be defended and how third parties would pay for damages caused copyright violations. Third party is not responsible for a breach of contracts – but for causing tort.

Read more carefully. I covered “innocent finders of copyrighted materials” in my earlier comment:

————————–

“If the state was abolished and private copyright contract were taking place, the importance of not neglecting the author’s work (book for example) would become so great that people would report their lost items as stolen. As you know, in private copyright contracts any copyright violation must be compensated to the author by the other side in contract – and that person (who lost the book) would have a case against the third party thief (“finder”) who caused the damages. Bearing that in mind, people would naturally hesitate before they just take and keep someone else’s lost property (which is likely to be reported as stolen) – and knowing that they could be responsible for large damages, it would make no sense for them to engage in gross copyright violation.

Therefore, private contracts would provide strong safeguards against copyright violations and they would save private property rights and incentives for creators.”

Posted by Sasha Radeta at December 15, 2006 11:57 PM

——————————

In other words, if I agreed that my purchased copy will not use for commercial purposes – I will be the only person responsible in case of such violation. Knowing this, I would never allow anyone strange to access my book without a contract protecting me against potential violation. I would also report any lost item as stolen (making any third party liable in case he/she decides to keep someone else’s property and cause damages to me by creating unauthorized copies). Knowing what kind of damages could occur, “third party finder” would be deterred from such action.

Remember – I am only advocating legal measures directed at contractual parties – and third party trespassers. My position stems from private property rights and libertarian non-aggression principle (if you agree that you purchase only some personal uses of a product – and you acknowledge that commercial use belongs to the author – even without more specifics any profits and products from the commercial use would belong to the author). Third party involvement is the issue of tort – not of the contract law – and I clearly demonstrated how they would be averted from causing damages to the side in contract.

Stephan Kinsella December 18, 2006 at 1:08 pm

Sasha,

I never said that third parties are contractually bound by terms of use – and by repeating this nonsense you don’t contradict anything I said. I explained why Rothbard’s position can be defended and how third parties would pay for damages caused copyright violations. Third party is not responsible for a breach of contracts – but for causing tort.

I am aware of the plot of Star Wars; if I write a novel called “Kinsella’s continuing adventures of Han Solo,” or produce a musical called “Kinsella’s Star Wars: The Musical,” are you saying this is a tort?

Remember – I am only advocating legal measures directed at contractual parties – and third party trespassers.

unlike Rothbard, I guess. I have no idea what you belive now, Sasha, except that you think we own our labor, as if it’s some substance that emanates from our bodies; you think that your knowledge of E=mc^2 gives you some special scientistic insight into ethical and political theorizing. Weird.

Sasha Radeta December 18, 2006 at 3:29 pm

Stephan,

We can talk about a free market scenario: If someone else had a contract with Lucas – contract that explicitly prohibited the copying of some of its content – than any violation of these terms will result in damages that must be paid to the author. If this violation was committed by a third-party trespasser – this would constitute a tort.

My position explains why Rothbard was essentially correct and why third party trespassers would pay damages caused by actions that violate someone else’s terms of use (based on tort – not on breach of contract).

The fact that you deny physics, like some medieval religious fanatic, has nothing to do with this topic. It only shows that you do not care about scientific truth or logic.

Stephan Kinsella December 18, 2006 at 3:37 pm

Sasha,

We can talk about a free market scenario: If someone else had a contract with Lucas – contract that explicitly prohibited the copying of some of its content – than any violation of these terms will result in damages that must be paid to the author. If this violation was committed by a third-party trespasser – this would constitute a tort.

That is not the issue or the problem. The problem is any copyright regime evaporates if third parties are free to use original works, so long as they are not parties to a contract or trespassers.

The fact is there are many people in the world today who know what Mickey Mouse looks like, the general story behind Star Wars, what the Elton John Candle in the Wind lyrics are and song sounds like; Hey Jude’s melody and lyrics.

Now, if these innocent third parties use the knowledge in their heads–to duplicate the work, or perform it, or make derivative works based on it–under copyright law they can be sued. But there is no basis under which they are liable under a free society–or so I content.

Do you agree, or not, Sasha? Are these people committing “trespass,” or not? If you say yes–you are both wrong, and question-begging; if you say no, you have admitting an exception that utterly destroys copyright law or its contractual emulation. Which is it? Why do you keep evading and changeing the subject?

My position explains why Rothbard was essentially correct and why third party trespassers would pay damages caused by actions that violate someone else’s terms of use (based on tort – not on breach of contract).

Rothbard said that the third party is liable not because he is a trespasser but because he didn’t have title to the information he obtained, which mistakenly assumes information has a title.

The fact that you deny physics, like some medieval religious fanatic, has nothing to do with this topic. It only shows that you do not care about scientific truth or logic.

Of course I don’t deny physics; I just deny scientism.

Fred Mann December 18, 2006 at 3:41 pm

Sasha, the “leak fee” I mentioned relates to one of the possible solutions in your copyright scenario. If the ideas are leaked, then the damages will either take the form of a flat fee (“leak fee”) or a fee in proportion to the copies that resulted from the leak. This is in no way an endorsement of your scheme or an acknowledgement of its feasibility. (Is “Person” writing under a pseudonym now?)
Of course, if the damages are to be assessed by taking into account the total number of copies that resulted, how is this going to be measured? Who will track the number of “bootlegged” copies? And how long should we wait before taking said tally?
With respect to the author leaking his own work…
it *seems* like you are saying that if any unauthorized copies start appearing on the market, then *someone* is liable for damages. But you also said that it is possible that the origin of the unauthorized copies may be impossible to trace. So how do we avoid the situation where the author himself starts leaking his work in order to collect these fees (assuming he can’t be identified as the leaker)? Certainly these fees could be enormous. Why is this so hard to understand?
It also seems like your system would make a book/manuscript a dangerous thing to own… or at least it would make ownership of a book a much greater responsibility (i.e. burden). Do I have to hide my books if I have a party?
It doesn’t seem like you’re following me at all. Maybe it’s my fault. I don’t really have time to figure it out right now.
You may want to systematically lay out the scenario (including contract wording and specific parties involved, implied contracts, etc.) where you effectively simulate the effects of today’s copyright laws in a free market.

Sasha Radeta December 18, 2006 at 4:00 pm

Stephan,

Imagine that you purchased my book on basic economics. If our copyright contract is violated by some third party who committed trespassing – than their actions will result in tort. You will be entitled to damages that they cause. Do you agree or not?

In case that you loose your book, an innocent finder would be aware of the danger that this item is reported as stolen. That “finder” would be deterred from any action that would result in serious damages.

Your Mickey Mouse example just demonstrates your lack of focus (to say it nicely). I already explained that authors who intend to use their works in mass media, bombarding the public with free access to their images and music works – could not make a copyright contracts with these media outlets. Media would not purchase and publicize these images and works of music if they were held responsible for any reproduction of those works. However, in order to make their program more popular and to make money on commercials, media would pay large sums of money for quality copyright-free content.

But this situation does not apply to those authors that do not want to use mass-media as the mean of promoting something else (like concerts or TV commercials)… The book authors, for example, depend on copyright protection for their economic survival – and they absolutely have a right to formulate copyright contracts that would protect them. These contracts would exist and hold in a free market.

—-

Of course that you deny physics, not scientism. The science of physics defines what our physical body (that we own) is consisted of – but you choose to contradict this.

Sasha Radeta December 18, 2006 at 4:07 pm

Fred,

You make me laugh. Your “leak fee” is nothing but a copyright that I propose (just fuzzy and with less details). You are just unprepared to admit that you concede to my argument: that the author has a private property RIGHT to sign a contract which would prevent unauthorized use of his product.

As far as your “unknown violators” objection goes, they exist today. If we abolish government’s monopoly in copyright protection, we can only expect more efficiency in finding these violators, not less.

Stephan Kinsella December 18, 2006 at 4:11 pm

Sasha:

Imagine that you purchased my book on basic economics. If our copyright contract is violated by some third party who committed trespassing – than their actions will result in tort. You will be entitled to damages that they cause. Do you agree or not?

No, because this is confused. How does a third party violate our contract? He is not a party to it.

Anyway this is utterly irrelevant. The danger is NOT some third party who commits trespass. It is the innocent third party who uses information he has come into possession of without committing trespass.

For example, you may be able to find an MP3 file on the Internet of the Beatles Hey Jude song. Or of the latest popular novel. Or of a textbook. If you listen to that song, or read that book file, you are technically committing a copyright violation. Now, under your little theory, do these actions amount to “trespass”? If you say no, you are basically opposed to any copyright regime, even one constructed out of “contract,” since you are rejecting Rothbard’s view that you can bind third parties. If you say yes, you are question begging (plus wrong).

Before I explain in detail why you are wrong, you must choose and explain what your view is.

In case that you loose your book, an innocent finder would be aware of the danger that this item is reported as stolen. That “finder” would be deterred from any action that would result in serious damages.

This makes no sense at all. You obviously have no idea what you are talking about.

Your Mickey Mouse example just demonstrates your lack of focus (to say it nicely). I already explained that authors who intend to use their works in mass media, bombarding the public with free access to their images and music works – could not make a copyright contracts with these media outlets.

I’m not talking about that. I’m talking about any author at all–of a song, novel, software, movie… if some innocent third party acquires this information-pattern without committing trespass, the author is screwed b/c he has no cause of action against the third party “pirate,” other than copyright law (which is invalid).

But this situation does not apply to those authors that do not want to use mass-media as the mean of promoting something else (like concerts or TV commercials)… The book authors, for example, depend on copyright protection for their economic survival – and they absolutely have a right to formulate copyright contracts that would protect them. These contracts would exist and hold in a free market.

Your mental abilities must be limited here; you simply do not seem to understnad that real copyight protection requires third parties to be bound; and that they are NOT bound by a bilateral contract between author and customer.

Of course that you deny physics, not scientism. The science of physics defines what our physical body (that we own) is consisted of – but you choose to contradict this.

I never denied this at all. From the ethical point of view it is utterly irrelevant what our bodies are “really” made of; that they are rivalrous resources is all that matters. Whatever they are, the question is: who owns a given body or other scarce resource?

Sasha Radeta December 18, 2006 at 4:34 pm

Stephan,

Your mental abilities prevent you from understanding that your copyright obligations can be violated by some third party’s action (trespass). I will not hold that third party responsible – but you. If I excuse you for some third party’s involvement – then no contract could ever be enforceable (people would always violate contracts using third parties as an excuse).

So in case that “innocent finder” finds MY book and than decides to reproduce it – you would be responsible to pay me for the value of these unauthorized copies. In turn, you could claim that this third party stole this party stole this book from you – and you would sue that part person for damages this theft caused you (tort). To use Rothbardian argument – you would argue that the book and its information did not belong to that person.

—-

Regarding your denial of physics – it clearly relevant to know what physical body is consisted of – if you claim your ownership. As far as issue of scarcity goes, you demonstrated that you have no idea what economic definition of scarcity is – and why both software and labor are scarce.

Stephan Kinsella December 18, 2006 at 4:52 pm

Sasha,

Your mental abilities prevent you from understanding that your copyright
obligations can be violated by some third party’s action (trespass). I will not hold that third party responsible – but you.

If you are trying to say that the buyer/licensee can be liable if he is too careless and does something that permits the idea or information to get into the public domain–fine. I admitted this from the get-go. BUt holding me responsible is not enough. You just don’t get it: you don’t appreciate *why* copyright law is today NOT aimed only at the second party who leaks–but at the general public who uses. And Rothbard clearly said the third party is liable; you seem to be very confused on just what you believe.

If I excuse you for some third party’s involvement – then no contract could ever be enforceable (people would always violate contracts using third parties as an excuse).

We are not talking about excusing the second party–to the contract. We are talking about wehther third parties are themselves liable. They are not, per se. Your referring to the third party’s actions as trespass shows your utter confusion and inability to understand why begging the question is not legitimate and what it means to set forth a coherent argument or position. You are all over the map and inventing your views as you go along. Mine have been developed and formed over years, and not a thing you have said has caused me to budge in the slightest, since you are just blathering things I’ve heard many times and long ago debunked.

So in case that “innocent finder” finds MY book and than decides to reproduce it – you would be responsible to pay me for the value of these unauthorized copies. In turn, you could claim that this third party stole this party stole this book from you – and you would sue that part person for damages this theft caused you (tort).

Why is it a tort to find a book and use it?

To use Rothbardian argument – you
would argue that the book and its information did not belong to that person.

Er., right, and as I have expalined, there is no property right in the information.

Regarding your denial of physics – it clearly relevant to know what physical body is consisted of – if you claim your ownership.

When A and B both desire to control or use a given scarce resource, the only question is which of them has a better claim. It is not relevant what the thing is “really” made of–that it is scarce is sufficient.
Sasha, you are nothing but a confused pest, so I am done with you. Keep your remaining posts civil or you’re outta here.

Sasha Radeta December 18, 2006 at 5:19 pm

Stephan,

You referred to my mental abilities as limited – so I responded in the same way to you. Why are you now threatening me with a ban? Will you be “outta here” if you keep using these unprovoked insults, like calling me a “pest” in your last paragraph?

I will keep my posts civil and I will use you as my reference.

—–

Your “third party” argument against contractual copyright failed. The fact that you were developing your position in yeas can only contribute to your frustration. You fail to realize that my argument is very consistent:

As you admitted, if some third party (outside of contract) causes your breach of contract – you will hold that person liable. You can claim that the book (for example) did not belong to that person and that this person stole it. Knowing how difficult it would be to claim that you “accidentally found” the item reported as stolen – any “finder” would be foolish to commercially use that item.

—-

Your statement that it “does not matter” what your property is really made of makes absolutely no sense – simply because our body is consisted of scarce resources. Our body’s organs are scarce and economically valuable, as well as our labor.

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