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.

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.

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.

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?

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.

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.

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.

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.

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.

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.

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.

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.

“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).

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.

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.

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!

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.

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.

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.