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Source link: http://archive.mises.org/6035/microsoft-and-tangibility-of-software/

Microsoft and Tangibility of Software

December 18, 2006 by

One argument against intellectual property is that property rights should be recognized only in scarce (rivalrous) resources. Some refer to this quality as “tangibility,” somewhat inaccurately in my mind, but it’s at least a similar concept. Anyway, the basic idea is that, say, “software” is not property because it is not tangible or scarce; therefore, copyright in software is illegitimate.

Of course advocates of copyright in software have to maintain that lack of tangibility is no barrier to software’s being protected by property rights. Like, say, a Microsoft. So it’s somewhat ironic to see Microsoft arguing that the intangibility of its software makes it different from normal, physical property for purposes of a US patent law provision that makes an exporter of technology liable for patent infringement if the thing exported is combined outside the US with a computer to result in a device covered by a US patent. In other words, Microsoft wants to have it both ways: software ought to be covered by copyright, even though software is not tangible. Yet, because it’s not tangible, it should not be counted like a tangible component would for purposes of the patent-export law.

{ 89 comments }

ktibuk December 20, 2006 at 3:37 am

RTR

“There’s no economic difference between labor services and alienable goods. They’re both scarce and are valued by human actors. Any distinction is arbitrary from an economic perspective.”

All your talk about servtitude is an ethical argument not an economic one. And this IP debate has both sides in it.

If you talk about scarcity, demand and supply, etc only, you are entering in an economic debate which you already lost.

But if you want talk about property “RIGHTS”, honoring or enforcing contracts based on these rights, and servtitude this is an ethical argument.

If you want to look at this from purely an economic point of view, like Mises, you can do so but you can not say what you have been saying.

Notice Mises’ name doesnt appear in these discussions but Rothbards and Hoppes do. Because Mises never entered into an ethical discussion.

You are getting more confused by the time passes.

ktibuk December 20, 2006 at 3:57 am

And Sasha,

“As far as your forced sex example goes, I already told you what the difference is: labor is not alienable. You cannot force someone to work, but you can force them to pay damages specified or not-specified by labor contract. So there is no inconsistency: labor laws are still enforceable as evidenced in our every-day life (from soccer teams to Hollywood). I don’t know where you got that silly idea that you can just break the contract (and commit a theft in terms of use) by “changing your mind?”"

You are mistaken that in the case of not honoring a future labor promise or a contract, the laborer owes any damages.

He does not.

All the current legal enforcements like soccer players, artist whatnot are actually against natural property rights.

Future labor contracts are not enforceble in any way. Forcing the laborer to work or making him pay for the damages (which would again is making him work for that promise) is the same thing.

Bu this has nothing to do with the copyrights and IP anyway. No relevance what so ever..

Copyright contracts are not labor contracts. Yes labor is involved but the product, the knowledge, is alienable. Copyright contracts are not future labor contracts for any party. The creator doesnt promise a future labor, nor the buyer of the creative work to eachother.

And for the wheel, electricty or whatever invention.

Independent discovery and deciding on this issue is a convenience issue.

It should be decided in court.

If I make and invention and sue someone with the same invention for stealing, I have the burden of proving the theft.

In some cases like a complex book proof is easy, because no way someone else can right exactly the same book.

But inventions which look simple after they are known are harder to decide.

So inventors would try to find a way to protect their inventions. Like Coca Cola have been doing for years.

And when Rothbard was talking about putting a copyright on a mouse trap he as talikng about this issue.

The problem with patent laws is, it assumes the late comer as a thief ex ante. No trial no nothing.

Rothbard wasnt confused about anything the way Stephan so arrogantly supposes. He was right on the stop and I wonder why this discussion is still going on after Rothbard already took care of it.

I know it would be hard to improve on Rothbard but this IP thing is really ridiculous.

Sasha Radeta December 20, 2006 at 6:16 am

ktibuk,

Thanks for your great comments. We share appreciation for Rothbard. However, I have a different approach when it comes to labor contracts.

You mentioned “future labor contracts” when you referred to “current contract” (current promise) that involve future labor services. I think it is important to make a distinction there. Allow me to explain… Analyze this critically and tell me what you think:

Labor contract by definition involves promise of future labor services. Whether you get paid in advance or after job completion – it does not change the nature of this contractual promise of future service. Bear in mind that promise of future labor service is countered by other side’s promise of future compensation. There is a current exchange of property titles: money now belongs to you, while your labor now belongs to me. This contract should be enforceable like any other of the same nature. The only difference here is that delivery of property (for which titles are already exchanged) is scheduled for some future day.

If contract specifies damages (clear-cut case), or even if it doesn’t specify them, you still did not provide service that someone was entitled to. That is not fundamentally different from someone who sells their house, transfer their title – but then realizes he made a mistake and tries to prevent the owner from moving in.

In addition, you have real damages caused by the breach of contract (my wedding-day examples with cooks, planers, etc).

rtr December 20, 2006 at 8:59 am

Sasha Radeta: “labor is not alienable. You cannot force someone to work, but you can force them to pay damages specified or not-specified by labor contract.”

So labor is not “alienable”? Copyright and ideas are even less “alienable” than labor. Labor at least exists in the physical and material world.

From dictionary.com:

al·ien·a·ble

–adjective Law.
capable of being sold or transferred.

So since those who claim copyright are attempting to sell something which is not alienable, ideas, are copyright claimants who trade for alienable goods guilty of the crime of fraud? Or are all contracts involving copyright simply illegitimate on the grounds that inalienable things cannot be enforced, like labor?

Who cares if labor laws are enforced in everyday life? So is taxation.

How can there be any theft of something that is not alienable? Ideas are not capable of being sold or transferred. Thus, ideas are also not capable of being stolen either! If the emperor’s clothes do not fit, you must aquit!

But Sasha Radeta you are still at the mercy of the pencil for all the fruits of labor for life contract. You cannot eat except by charitable permission of the contract holder. You’ve failed to address that contract, yet again.

Sasha Radeta: “The fact that someone’s total and unalienable control over one’s body (the nature of our existance) theoretically excludes someone else’s sole control (ownership) over someone else’s body – makes slavery contracts even hypothetically invalid from a stict legal perspective. Subsequently, we cannot have slavery contracts in which someone can be forced to work. Instead, we have labot contracts, in which violators must pay some damages (other than labor).”

Slavery contracts? Nobody is forcing you to work in the pencil for all the fruits of your labor contract example. But if you work, including procurring food, that food and anything else you produce doesn’t belong to you by contract, according to you yourself.

Sasha Radeta: “As I explained you in many different examples from labor to premarital contracts – they cannot be violated if they specify some property title transfer. Period!”

Ok, then acknowledge according to you in the pencil for all the fruits of your labor for life contract you are not allowed to eat. All the fruits of your labor for life was clearly specified property title transfer.

rtr December 20, 2006 at 9:12 am

ktibuk: “All your talk about servtitude is an ethical argument not an economic one. And this IP debate has both sides in it.”

No, actually it’s value-free simple observation. Just like Mises observed people are either freely trading with one another, or they are not; there is no in between third possibility.

Trade is either voluntarily conducted, contracts either continue to be voluntarily agreed to, or they are not voluntarily agreed to. If a contract is enforced against someone who changes their mind about the contract in the future, then logically, if the contract is enforced against them, they are being sujected to servitude, the opposite of trade.

Sasha Radeta December 20, 2006 at 9:30 am

ktibuk,

Contracts derivable from the right of private property are enforceable (I don’t care about the term “natural” when it comes to these issues). Or as Rothbard stated: “contract should only be enforceable when the failure to fulfill it is an implicit theft of property.”

At the first look, our example with the person who completes the contractual sale of his house – but refuses to move out – does not seem like a theft. After all, he just “changes his mind” and decides to keep “his” house and to refuse “ex-buyer’s” money. So there is no theft, because there is no exchange at all, right?

WRONG! We have to honor the fact that contract was signed and property titles were exchanged. In other words, house is now buyer’s property and money is now seller’s property. Seller’s occupation of someone else’s house is nothing but a theft. The fact that he is preventing the delivery of his money does not mitigate the theft of the buyer’s property (house). Buyer values that house more than that money (which he clearly demonstrated by making his purchase). Buyer does not want to be forced to take seller’s money and to accept the theft of his house.

This brings us to question: can a unilateral mistake of a seller make a contract voidable, just by itself? The answer is no! Not even bilateral mistakes can make a contract voidable (see Raffles v. Wichelhaus). But even more important question: can voluntary market exchange ever be considered a “mistake,” which buyer knowingly exploited (voidable situation). The answer is NO! Voluntary market exchange implies that both parties were benefiting from it at the moment of contract signing. Ex post facto analysis by one side does not count when we analyze circumstances when voluntary contract was formed.

It is not difficult to see how this would be comparable with labor contracts, in which physical exchange of already transferred property is scheduled for some future day.

It is also easy to see that this issue has nothing with do with contractual copyrights. Even if you argue that any buyer has a “right” to change their mind and force seller to accept the return of his merchandise (which he doesn’t have to if transaction was final) – that does not mean that you can unilaterally change your terms of use to your advantage (theft).

——————————————

rtr,

When I said that labor is unalienable, I referred to this unique characteristic of self ownership (already described in this thread):

The fact that someone’s total and unalienable control over one’s body (the nature of our existance) theoretically excludes someone else’s sole control (ownership) over someone else’s body – makes slavery contracts even hypothetically invalid. “slavery contract” is an oxymoron.

However – physical property that contains some idea is alienable. You can committ a thef by using someone’s products in ways you did not pay for. That is absolutely clear to anyone who does not refuse to think. Relax… You will not be able to win this argument by ignoring simple logic that is self-evident even to a child.

Sasha Radeta December 20, 2006 at 9:40 am

Also rtr,

- Please stop insinuating that property that contains some unique idea or design cannot be ownable – because it can… Such property cam be subject to copyright;

- If copyright contract does not force you to work – than it is not a “slavery contract.” You conditionally transferred property title for all fruits of your potential theft – in exchange for personal use of that particular product. That is an absolutely valid contract and you will have to live with it. I will repeat this until you finally get this point: you cannot unilaterally “upgrade” your terms of use, because that is nothing but a theft. If buyers were able to behave like that in the airline, in their apartment buildings, in shops, or anywhere else – there would be no private property rights.

rtr December 20, 2006 at 10:33 am

Sasha Radeta: “However – physical property that contains some idea is alienable.”

Physical property is alienable by virtue of being physical property. Some idea which may or may not be contained in physical is wholly immaterial to it’s being pysical property.

Sasha Radeta: “You can committ a thef by using someone’s products in ways you did not pay for.”

Where’s the beef and where’s the theft? Only physical property can be stolen.

Sasha Radeta: “Please stop insinuating that property that contains some unique idea or design cannot be ownable – because it can… Such property cam be subject to copyright;”

Property can be ownable by virtue of being property. Ideas are not property. It’s a physical impossiblity to return transfer of an idea. Thus, copyright is an oxymoron in exactly the same way “slavery contract” is an oxymoron, though servitude is plainly understand as being forced to do something against one’s voluntary will.

Sasha Radeta: “If copyright contract does not force you to work – than it is not a “slavery contract.” You conditionally transferred property title for all fruits of your potential theft – in exchange for personal use of that particular product. That is an absolutely valid contract and you will have to live with it.”

Or die with it in the case of the pencil for all the fruits of your labor example.

*Conditionally* transferred? Something has either been exchanged or it has not been exchanged. Something is either voluntarily exchanged or it is not voluntarily exchanged. If voluntary exchange is not forthcoming, then both parties maintain their prior property. If at any time exchange is forced against one’s present will, that’s clearly involuntary theft. If something is conditional, it’s *conditional*, and it cannot negate the need for voluntary mutual agreement at the time of *actual* exchange.

If you want damages, then you need to procur an advance deposit on those potential damages. That would qualify as finalized voluntary trade.

Sasha Radeta December 20, 2006 at 9:41 pm

rtr,

If physical property is alienable – that means that it can be stolen. Unauthorized use of a physical property is called theft. Isn’t that so?

If you use a product in ways you did not pay for (violating a copyright agreement) – you are committing a theft. There is no point of arguing against this.

No one claimed that ideas per se are ownable – I only claimed that ownable property may contain idea or a unique design. The owner of such property may choose which use of his product is allowed. He may choose to sell personal use, while restricting commercial use, including the reproduction of his product’s design or content. That is a perfectly valid free market contract.

That has nothing to do with your silly pencil example – where some person may choose not to work, but he will have to pay damages for undelivered goods (just like a person who refuses to deliver goods, like in our example with a house sale).

If you want damages, an advanced deposit is absolutely not necessary. After signing a contract that mentions these damages, you already conditionally transferred the property title of that money. Whether the sides in contract decide to have this money delivered in advance, before damages occur, or if they agree that damages will be paid after the damages happen – it is completely in sovereignty of sides in contract.

You still demonstrate a complete lack of understanding of contract law and the very meaning of contractual relations. With all respect, you are not fit for this discussion.

andy December 21, 2006 at 3:54 am

Ideas and information are scarce (there are less of them than we want and need for our production and/or leisure, and you can sell information and knowledge)

Sasha, you are confusing terms. English is not my mother tongue, but it seems to me that you lump together ‘new information, idea’ and ‘existing idea’. Of course there is scarcity of new ideas, that’s why a company may still be motivated to pay programmers to work on opensource project. Once the information,idea,program exist, it definitely satisfies a definition of abundant good – everybody CAN have it for zero price. This does not hold for physical goods – even if it is produced, it is not enough for everybody forever.

ktibuk December 21, 2006 at 4:11 am

Sasha.

“Labor contract by definition involves promise of future labor services. Whether you get paid in advance or after job completion – it does not change the nature of this contractual promise of future service.”

It does change. If it is only promises that has been exchanged then contract is void, unenforceable.

Just as you quoted from Rothbard

“contract should only be enforceable when the failure to fulfill it is an implicit theft of property.”

When there is only promises involved there is no property involved tangible or intangible, hence no implicit theft.

And RTR

It is amazing even after you give the definition of alienable you still cant grasp the idea.

“From dictionary.com:

al·ien·a·ble

–adjective Law.
capable of being sold or transferred.”

So ideas can not be transferred? That is just plain funny. “Gorillas have the smallest penis size relative to the body mass in all of mammals.” There.. I transfered knowledge, and idea to you. And for free. I am still me. You dont have any future control over me. I just transfered knowledge to you. You could have given an alienable propery to me inexchange of the idea I have given to you. That could have been a knowledge you had, so we would teach eachother and both benefited from this trade. Or you could have given me some tangible property, like money commodity.

What do you think education is? Have you paid for college? If you did what did you pay for?

Since you dont believe in transferring ideas and believe they are not property do you advocate free education for all? Since ideas, knowledge is not scarce, not property then it should follow that they are free goods?

Labor on the other hand is not transferable. It is an impossibility in this universe. You cant take total control over some other persons mind even for a period of time. Maybe in scifi movies with hypnosis and stuff. But not in this real world.

On a side note.

I amazes me how an intellectual, who just produces and sells intellectual property for a living can be against IP.

Sasha Radeta December 21, 2006 at 8:21 am

Andy,

You kind of contradicted yourself. You said that one the idea exists (takes place) it automatically becomes abundant (non-scarce) good. But if that was the case, why would companies pay for ideas that exist in human minds (of their experts)? Why would students pay for their education? Well, simply because ideas can exist somewhere – but still be scarce – because people cannot just freely, at will, access other people’s minds.

You fail to recognize that same analogy goes for ideas that are stored on someone’s hardware. People cannot just have a free access to someone else’s property. The owner of such items may choose to sell only the personal use of his products, while restricting the commercial uses. That’s copyright.

———-

ktibuk,

I am consistent with Rothbard, as well as the common law. Go back to the meaning of term “contract.” In my example with the house sale – two sides did not exchanged empty “promises.” They exchanged property titles. Contract IS NOT voidable based on ex-post-facto understanding of unilateral mistake, or even a bilateral one. That prevents wedding planners and other professionals to book 100 of events for one day and then to cancel 99 of them at the last moment (to screw their competition).

In my example, the person who bought the house values it more than money for which he entitled the seller. If the buyer is prevented from entering his house (for which he now holds the property title) and forced to keep the sellers money – that is still an implicit theft. The buyer does not value that money as much as his acquired house (of which he is now unlawfully deprived) – and he does not want to be coerced into another (reversed) exchange.

rtr December 21, 2006 at 8:23 am

ktibuk, you cannot transfer an idea *back* so that the idea once again is possessed by a sole owner. If I tell you that the earth is round, not flat, it’s a physical impossibility to get that idea back from you. If you think it, you know it. And that’s it. The idea now belongs to you as well, and that has not in the least dminished or taken away my ownership or anyone else’s ownership of the idea that the earth is round, not flat.

That’s why ideas are not property. Ideas are not circumscribable. Ideas are not scarce. Ideas are not tangible. Ideas are not exclusively ownable. Thus, it is absurd for anyone to claim copyright ownership of an idea as the second they publicly make their claim the idea is no longer *by definition* solely owned by the creator, but also owned by anyone who hears, sees, reads, or independently thinks the same. And that multi-ownership doesn’t in the least diminish the resource of the idea. That idea is habitable by all with zero space limitations, unlike physical property in the material world which is subject to physical space limitations.

Sasha Radeta December 21, 2006 at 8:35 am

rtr,

Unfortunately for you, the copyright is not based on the notion that ideas can be transferred back (still that obsession with voidable contracts). Copyright is based on the notion that you own your mind and your hardware in which idea can be stored. And if you own that hardware, you can make voluntary contracts with other individuals, allowing them certain uses of that piece of property and its content – while restricting the others. That’s all.

rtr December 21, 2006 at 8:45 am

Sasha Radeta, it’s a physical impossibility for an idea to be stolen. Only physical things can be stolen.

Ideas are not products either. Products are things like books, with inked words on paper pages. Copying words on my own paper pages with my own ink doesn’t in the least violate the “use” of your original property, which was a specific book with specific inked words on specific paper pages. You don’t own the blank paper pages of others. You don’t own the ink of others. It’s none of your business what others use their own labor to put on their own paper pages with their own ink. It doesn’t belong to you.

There’s no such thing as “conditional transfer” of property. Property is *EITHER* voluntarily exchanged, *OR* property is not voluntarily exchanged. Property is not transferred until it’s *actually* transferred. ktibuk is right that a promise is not a transfer of physical property. A promise is no different in characteristics than is an idea. It’s not physical. It’s not property.

If you’re leasing a book and you object to how the book is being used then you can get back that specific book you leased. You have no title whatsoever to other books which contain pages and ink not owned by you no matter what someone may or may not have promised. You never even had property title to the ideas contained within a book. The only thing you had property title to was the specific book you “leased”.

rtr December 21, 2006 at 9:07 am

Copyright is an oxymoron. Copyright is no notion of property whatsoever. Indeed, you own your own mind and the hardware in which your ideas can be stored. That’s all. You don’t exclusively own ideas. You don’t exclusively own “content”. You only exclusively own actual physical property. You can make contracts, you can make promises, but that doesn’t negate the need for the exchange of actual physical property at the time of actual exchange to be voluntary for it to be called trade, and not theft. That’s really all.

ktibuk December 21, 2006 at 10:13 am

This has become a sircular argument, but I will make a few ponits.

Returnibility is irreleveant in trading tangible or intangible things. You cant return a tangible property either. At least according to private property and trade rules. That return you are talking about is whole new trade because evaluations change all the time.

Of course you cant have total control on the IP. It is much harder than tangible property.

But ideas and knowledge are scarce, people pay for them not because they are coerced but because they choose to.

If you acknowledge the first ever trade as legitimate (the first instance a particular idea is sold), how can you oppose the rest.

You would pay me for me to teach you something.

You accept this.

But since it is hard for me to stop you from teaching that idea to someone else, you claim that knowledge is worthless, a free good, not scarce etc.

This is purely an enforcement convenience issue.

Nothing else.

And for promises, Rothbard is very clear on this issue. He gives detailed explantions and examples. It is hard for me to relay all that from here. Please go back and read Rothbard again.

In the market if you break your promises market can punish you because you wouldnt have good reputation. But no legal enforcement is possible.

Before any property has transferred the trade has not started so it does not exist.

And promises are not IP. They are totally different things. Thats why a promise can not be enforced but a contract of a copyright can.

Sasha Radeta December 21, 2006 at 10:19 am

rtr,

Have I ever said that ideas can be stolen? Try to calm down and stop hallucinating.

First of all, you can transfer your property any way you want to. You can make a conditional title transfer based on some exterior condition. You can entitle someone to your property subject to their satisfaction of some condition (as in labor contracts and some inheritance cases). You can transfer your property based on other side’s satisfaction of some financial conditions (“buying on the installment plan”). You simply lack some basic understanding of how private property rights apply to the real world.

Your limited understanding of contracts prevents you from understanding that copyright is based on the exchange of titles of actual physical property.

If you purchase my book in exchange for money plus any damages in the amount of unauthorized copies (conditional transfer) – you cannot say that you own any unauthorized copy you decide to make. I own them based on our voluntary exchange of real property. Based on any definition of enforceable contracts, my ownership of any damages you may cause is perfectly valid. You cannot unilaterally decide to change our terms of exchange (reducing your obligations) – because that is a theft.

If you buy only the personal use of my product (explicitly excluding commercial ones, including reproduction) – but you decide to “upgrade” your terms of use without my consent (like a coach passenger who sneaks into the first class) – you are trespassing. That’s the theft I was referring to… and not some abstract “theft of idea” notion that is only a product of your hallucinations.

Sasha Radeta December 21, 2006 at 10:31 am

ktibuk,

Promises per se are not enforceable, but property title transfers (with a scheduled future delivery of the actual goods to their owners) are enforceable. I hope you understand the distinction.

rtr December 21, 2006 at 10:54 am

ktibuk, I can sell you the air you are breathing. It doesn’t mean I ever actually owned in the past, present, or future the air you are paying me to breath. But if you contract with me to pay for the air you are breathing, you can cancel that contract at anytime. And I have absolutely no recourse to force you to continue paying me for the air you breath, precisely because the air you are breathing is not a physical property I can exclusively own. Just like ideas.

The relevant FACT is it’s a physical impossibility to return an idea. That fact is a distinguishing characteristic from real physical property, which is able to be return transferred.

Explain how the specific idea that the earth is round, not flat, is scarce. Is that idea ever used up no matter how often and how many people think that idea? No, specific ideas are not scarce. They are never used up. They can be inhabited by as many people who think it, whenever, or wherever they may be.

Now compare the idea that the earth is round, not flat, to the physical material existence of an apple. If you eat that specific apple, that’s it, the apple is gone. That’s why apples are scarce, and ideas are not scarce.

You’re right that people choose to pay for ideas, just as you may choose to pay me for the air you breath. But that’s a choice that cannot be coercively enforced by another, whether they were promised such payment indefinitely, or whether they wave a contract in your face. You can’t force someone to pay for something you don’t own. If they voluntarily wish to do so, that’s their choice, keyword being choice.

rtr December 21, 2006 at 11:26 am

Sasha Radeta: :If you purchase my book in exchange for money plus any damages in the amount of unauthorized copies (conditional transfer) – you cannot say that you own any unauthorized copy you decide to make.”

That’s just it, you have no authority regarding copies because you don’t own property in or of the ideas which may or may not be in your specific physical book. You have no authority regarding what others do with their owned real existing blank pages and ink.

If you contract with me to pay me for the air you breath I cannot force you to continue trading your property to me if you change your mind and decide to cease paying me for the air you are breathing. What am I going to do? Take away the air you are breathing? Likewise, what are you going to do with ideas someone may have paid you for? Take those ideas back? Nope, you are stretching for false justification to commit violent aggressive actions to forecefully the take the real existing property of others under the bogus guise of the oxymoronic term “copyright”. That’s absurd.

Sasha Radeta December 21, 2006 at 12:28 pm

rtr,

You are hallucinating again. I never said that I “own property in or of the ideas” (whatever that means). I own my physical property – and I can sell you the specific use of it.

When you make a purchase of a book, in addition to money you provide you also entitle the seller with any unauthorized copies (you give him title to any damages that may ocurr as a result of your trespassing into a commercial use).

You unintentionally supported my whole argument with you nonsensical “air-sale” example (“nonsensical” because when it comes to air we normally breathe it is not a scarce resource that is sold – but we can talk about the air tanks in SCUBA diving… plus, this deals with the issue of “limited privilege in cases of necessity”… An airline cannot kick you out of their moving plane, even if you are trespassing).

But my whole point was this (excuse the emphasis): YOU CANNOT CANCEL PROPERTY TITLE TRANSFERS BY “CHANGING YOUR MIND”! That was my whole argument on why copyright contracts must hold.

You don’t even know what you are arguing anymore.

rtr December 21, 2006 at 2:24 pm

That’s the whole point, Sasha Radeta, you can sell a lease specifying use of a specific book, with specific pages, with specific ink. You cannot and have not sold a lease or sold any property of any other specific books with other specific pages and other specific ink. It doesn’t matter what content or ideas may or may not be contained in those other specific books with other specific pages and other specific ink. You’ve already admitted you can’t own content, you can’t own ideas, precisely because content and ideas are not physical property.

So what are you going to do if the contents and ideas of your book are on the internet? Claim the internet for yourself? Claim all the computers that belong to others for yourself?

If the property hasn’t been transferred at the time of trade, then indeed the transaction is cancelled if someone changes their mind. It isn’t a final transaction, it isn’t a final trade, until both parties have transferred what they agree to transfer. If it makes you feel better, agreement has not been executed until the goods are indeed voluntarily traded. Until that time, any contract, any promises, and conditionals, are as good and meaningful as a might possibility. If it doesn’t voluntarily come to you from the other party, coercing it is nothing but theft.

At any rate who cares what words or what ink pattern splotches are on the specific pages of your specific book. You don’t and can’t own meaning, ideas, or content, as you’ve already admitted, such things are not ownable, such things are not property. The only thing you can regulate or contract is the use of the specific pages with specific ink in your specific book. As long as those specific pages with that specific ink is sitting on someone’s bookshelf, your book isn’t being used commercially, and thus, you lose. The content may as well be random jibberish, may as well be the word “the” written 1,000,000 times, may as well be anything in any possible arrangement whatsoever; you never owned any of that content, you never owned any of those ideas, and thus you never had any authority to make a contract regarding those ideas, as you have already admitted, ideas can’t be owned, ideas can’t be stolen.

So I guess every book author with a copyright claim in it is in violation of every other book author with a copyright claim in it. What do they all have in common physically? They are bound pages with ink. Copycats indeed! What? Is the book unpatentable now too?

greg December 21, 2006 at 2:44 pm

SR> The economic definition of scarcity is this: when the price of a good is zero, demand exceeds supply.

Ridiculous. When the market price of a “good” is zero, it is no longer a good, it is something worthless, by definition. Goods are not ideas. Ideas are not property.

rtr December 21, 2006 at 3:24 pm

And lest we forget, regulating, prohibiting, contracting, *copying*, is regulating, prohibiting, contracting, *labor*, which we’ve previously established is unenforceable servitude.

Sasha Radeta December 21, 2006 at 4:11 pm

Greg,

You need to read more, or read more carefully. We can always decide to set the price of any good or service to zero (that’s called state socialism). But what happens at that moment (we’re talking about markets for “goods,” not about something worthless)? It happens that quantity demanded becomes large, while quantity supplied goes drasticly down – and shortages exist. That is a symptom of scarcity that exists in markets for software – and it is also a symptom of your economic ignorance.

—–

rtr,

You may hallucinate about “idea ownership” all day long. I never advocated such thing and your messages about that nonsense only illustrate the weakness of your arguments. Trust me, you’re not going to accomplish anything by replying to something I never even said.

We both know what the whole point of our discussion is: you have a right to sell a certain use of your product and to restrict other uses. If you think that your authorship is worth anything, you will certainly care about your “ink patterns”. If I buy the personal use of your book – and I pay $15 for that plus the obligation to pay the amount of all damages from unauthorized use (copies + profits)… that is a perfectly valid contract.

I cannot say one year after the exchange happen:
-”Geez, I really overpaid this book – let me give myself a nice fat upgrade… I will just take for free that commercial use that belongs only to the author.”
And imagine if I also said:
“I think that I should also give myself a nice fat discount… I will take back the amount of damages that belongs to the author (based on property title exchange) – screw you!”

That is nothing but a theft and aggression. It is not aggression when some author tries to collect his property, for which he obtained the property title in a voluntary market exchange. If someone publishes the author’s works against the terms of use – wherever that person publishes it – that author will use his resources to track him down and to collect his damages.

Like you said, you cannot “change your mind” and adjust the outcome of a voluntary market transaction by violating someone’s property rights (in both terms of use and damages for which the author has the property title).

Regards.

Sasha Radeta December 21, 2006 at 4:21 pm

But Greg, don’t feel too bad: the author of this thread (Kinsella) failed to even recognize the issue of scarcity in labor markets.

rtr December 21, 2006 at 4:53 pm

Sasha Radeta your argument was completely stripped and defeated.

1.) Labor cannot be compelled, even by contract, such as forcing sex, or prohibiting copying.

2.) Ideas are not property.

3.) There are no copies of your book. There is still just your book, your pages, your splotches of ink on those pages. That’s all you can sell, that’s all you can pretend to just “lease”.

4.) Any other books which may mirror yours are made with different specific materials, different specific pages, and different specific splotches of ink. Any comparison of content is a comparison of non material non tangible property. Even a change in font is a completely different book than your original, unless you again want to fantasize that you can sell non material non property ideas, which you can’t.

5.) Your contract is invalid on multiple grounds:

A.) It’s enforces/prohibits labor in the form of labor on copying

A-1.) Terms of use are also prohibitions on labor. If I want to spit on “your” book, that’s my right. If I want to toss “your” book into the ocean, that’s my right also. If I want to burn “your” book, it’s burned. You gonna sue those who’s libraries may burn with your book in them? Your argument is so weak, you couldn’t claim damages if the actual physical manifestation of your book was deliberately destroyed. Why? Because you have no property claim on that book, let alone any other property claims which was not your original book. Deliberately burning the book you sold is not theft nor agression. And nor is “copying” it. Ideas can’t be stolen. Labor cannot be compelled. You’re done, friend. Check mate.

B.) It mentions as property things like ideas which are not property.

C.) Real goods were not actually voluntarily exchanged to you.

greg December 21, 2006 at 8:18 pm

SR> We can always decide to set the price of any good or service to zero (that’s called state socialism).

“We” can’t, and the price isn’t zero. Fairies and elves didn’t produce while “we” were asleep, even in a socialist state. What fantasy land are you living in? When A exchanges the product of A’s labor for B’s product of labor, “they” don’t set the exchange price to zero, by definition. If “they” did, it would be another thing: gifting. But gifting costs the giver. What you say makes no sense. Some things, like air, cost zero and are needed/valued, but we don’t call air scarce (usually). That is why it costs nothing.

SR> …it is also a symptom of your economic ignorance. [And] … don’t feel too bad: the author of this thread (Kinsella) failed to even recognize the issue of scarcity in labor markets.

{laughs} No one cares about “scarcity of labor.” They care about what labor accomplishes — that’s what is scarce. The fact that a real person has to sit/stand/jump/dance to manufacture the accomplishment is merely incidental. If everyone could leisurely sip mimosas under their cozy cabana without working a second, then that is what they would do.

Sasha Radeta December 21, 2006 at 11:08 pm

Greg,

You obviously made a logical lapse and forgot about basic economics and what I really said, while trying to be a smart-mouth. Give it up.

I did not say that giving away goods for free is a free-market outcome, and you know this well.

Yes, we can experimentally set prices of some good to zero after something is produced – just 1to see what would happen (politicians did this for particular goods and services in socialist economies). And what happen in those cases are extreme shortages (Q demanded is greater than Q supplied). That’s the definition of scarcity. Such condition normally does not exist for air, harmful weeds, pollution, but they do exist for software or labor.

You also did not understand the significance of that definition of scarcity: product came to existence before markets were established. At the dawn of civilization, only those products that were scarce (for which demand exceeded supply at that moment without markets and zero prices) got to be owned and exchanged.

You are incorrect when you say that no one cares about scarcity of labor (anyone who managed at least a household knows why such statement is absurd – the issue of scarcity gave birth to property rights and market exchanges). But of course we care more about what labor accomplishes – just like we care more about what goods accomplish (our end goals of personal satisfaction or production).

So you failed to say anything meaningful, but you were not ready to admit that economic definition of scarcity makes perfect sense.

——————

rtr,

You can only make me laugh. Of course that you think my arguments were “stripped and defeated” because you imagined many statements that I never made. That is the only way you can provide rebuttal – by arguing with yourself.

1) Nobody here argued that labor can be compelled – you hallucinate.

2) Nobody argued that ideas per se are property (on the contrary, we insisted that copyrights must deal only with the use of tangible and exchangeable property) – you hallucinate.

3) There are copies of my book. That’s why we have COPY machines… and no, that’s not a metaphor. And I can lease my product or sell it any way I want to – without “pretending” (whatever you meant by that) – you hallucinate.

4) In exchange for the use of your book I can give you the property title on any damages if unauthorized copies of that item occur. Basically, I transfer you the property title on any such “mirror book” that was made when I trespassed against your exclusive use of that item. You are now legal owner of paper, ink… these books in their entirety.

5. My contract is valid on grounds that it is a voluntary exchange of property title. There are only certain conditions that would make some contract voidable. You don’t know a single one. Please educate yourself. The arguments that you tried to use are ridiculous:

A) Contracts always prohibit some form of “labor” that is in violation of that contract. The only way that a contract can be enforceable is by prohibiting action (labor) of contract violation. You don’t even realize how silly your first pseudo-argument is, just from a primate intelligence standpoint. I don’t know where you got that insane notion about freedom of any kind of “labor” – but surely, it was not on this planet.

A-1) Terms of use specify what use of my product is allowed. Any “labor” that is not mentioned in terms of use is trespassing and theft. If you don’t like the use I offer – don’t buy them. However, you cannot pay for these allowed terms of use and than give yourself an “upgrade” like in my airline seats example (that’s stealing).
B) I never mentioned that ideas are property. You hallucinated again.

C) Property titles of real goods were “exchanged to me,” although your mental defense mechanisms will prevent you from understanding that. Money that I paid for personal use of your book and property title on possible damages that I gave – are all “real goods.”

Regards.

Fred Mann December 22, 2006 at 1:44 am

Sasha writes:

“In exchange for the use of your book I can give you the property title on any damages if unauthorized copies of that item occur. Basically, I transfer you the property title on any such “mirror book” that was made when I trespassed against your exclusive use of that item. You are now legal owner of paper, ink… these books in their entirety. ”

Does this mean that I have to pay for all copies that come into existence if a stranger finds my copy of the book that I accidentally left on the beach?
If so, I don’t think many people would buy books in the first place. Why purchase something as trivial as a book if it could cost you untold amounts of money if you should lose track of it?
Of course, I have to ask, because the language you use above is extremely garbled. First of all, one doesn’t “trespass against your exclusive use of that item”. That’s not a proper use of the term “trespass”. I guess what you mean is “violate the ‘terms of use’ agreement”? Also, how can one give someone “the property title on any damages?” Do we own “damages” now? If so, I’ll give you ten dollars for that sack of damages.
Speaking of damages, a very interesting problem arises if we entertain your free-market copyright scenario (one of MANY) …..
How are we to know that any damage occurred at all? Presumably, you use the term “damages” to refer to some perceived loss of sales that results from some unauthorized copies coming into existence. But of course, we don’t know if any of these sales would have actually occurred. (In fact we can never know if ANY sales *would* have occurred *AT ALL* given a different set of circumstances.) How do we know that these people (or any people) would have bought your book? We don’t even know if these “potential customers” would have even known of the book’s existence, were it not for the specific set of circumstances which brought it to their attention/posession (i.e. if it wasn’t for the unauthorized copy, these people may have never seen/read *any* copy of your book.)

ktibuk December 22, 2006 at 6:09 am

:-)

We are repeating the same things over and over mostly but once in a while new ideas pop up.

RTR said

“Explain how the specific idea that the earth is round, not flat, is scarce. Is that idea ever used up no matter how often and how many people think that idea? No, specific ideas are not scarce. They are never used up. They can be inhabited by as many people who think it, whenever, or wherever they may be.

Now compare the idea that the earth is round, not flat, to the physical material existence of an apple. If you eat that specific apple, that’s it, the apple is gone. That’s why apples are scarce, and ideas are not scarce.”

First returnability was introduced, now “using up”.

The only thing that is used up in this universe is time. Thats it. No other matter or energy is ever lost. They only change shape.

So this, as returnability, is not a distinction between tangible and intangible property.

You are right, when you divulge an idea knowledge, you can not take it totally back. You can not erase a memory.

Once it is out there, it can spread, etc.

But this is not a scarcity issue per se.

There is definitely scarcity in the production and the first trade before it all spills out.

Sepecific, usefull, subjectively valued knowledge which contains utility, isnt free everywhere. We dont live in a garden of eden of ideas. We still dont know dont have zillions of knowledge that contains utility.

If it were then everyone opposed to IP would certainly be right.

Some people produce knowledge. Some of these give it away for free, either as a gift like tangible property (mises.org is an example), and some give it away free because transaction cost of the sale would be too high.

But please try to understand.

These ideas are not like air we breathe. They are not free as anyone could obtain them without effort and conflict.

They are not scarce.

Hence they are property.

Enforcement is a technical issue.

Sasha Radeta December 22, 2006 at 6:38 am

Fred Mann,

I already explained how contractual copyright would provide enough safeguards to deter anyone from copying book he/she “accidentally finds” or steals (makes no difference). We are repeating ourselves too much as ktibuk noted, but what should I do when you bring the old question back… pretend that you “got me?”

As in any contract, you cannot be excused for a third party action that causes your breach of contract (otherwise, third party would have a “license to steal” and no contract could ever be enforced… that would be a good-bye to market exchanges). But if you are liable for the amount of damages based on contract – you are going to seek a tort case against that third party that caused you that damage. This third party knows that in all likelihood you can claim that your book was stolen, and a “finder” who reveals himself will have a hard time to prove that it wasn’t stolen. That would shift the cost of your liability to this third party. That will finally avert these “finders” from putting someone else’s property into a commercial use.

As far as your objection to the term “damages” goes, I am only referring to predetermined amount to be paid in case that breach of contract occurs. If you don’t like it – don’t sign it. You think that not too many people would buy books based on these conditions – but you forget that most of the people aren’t thieves – and those who are… well, they should pay. People who neglect other their obligation (“absentminded” as Stephan put it) should not be excused for their actions; otherwise, you would have another type of “license to steal.”

Sasha Radeta December 22, 2006 at 7:04 am

Also Fred,

You said: >>First of all, one doesn’t “trespass against your exclusive use of that item”. That’s not a proper use of the term “trespass”.< <

REALLY?! That's interesting! I'm just kidding, it's absurd.

- Using term trespass when it comes to unauthorized use (contrary to terms) is absolutely appropriate. Trespass is an unauthorized use.

---

In addition, you said: >>Also, how can one give someone “the property title on any damages?” Do we own “damages” now?<<

- Of course you own the means to produce these damages (in the amount of unauthorized copies and/or their profits). You heard RTR…. it’s your paper and ink, but someone else’s commercial use of the book. In a copyright contract you would transfer property title on any potential damages to the author at the time of exchange. That is a conditional transfer of property that will occur only in the event that specified conditions (from unauthorized use or trespass) take place. Implicit contracts of that type prevent lottery or a casino from “changing their mind” once someone wins their jackpot. They also prevent an employer from “changing his mind” once the labor contractor satisfies conditions specified in their agreement. Once you trespass (go against your terms of use) and you create conditions that would produce those damages, the other side can exercise his property rights over those unauthorized copies (jackpot).

Fred Mann December 22, 2006 at 3:12 pm

Sasha writes:

“But if you are liable for the amount of damages based on contract – you are going to seek a tort case against that third party that caused you that damage. This third party knows that in all likelihood you can claim that your book was stolen, and a “finder” who reveals himself will have a hard time to prove that it wasn’t stolen. That would shift the cost of your liability to this third party. That will finally avert these “finders” from putting someone else’s property into a commercial use. … As far as your objection to the term “damages” goes, I am only referring to predetermined amount to be paid in case that breach of contract occurs. If you don’t like it – don’t sign it. You think that not too many people would buy books based on these conditions – but you forget that most of the people aren’t thieves – and those who are… well, they should pay.”

First of all, this is the “leak fee” which I referred to earlier … a flat fee for any and all unauthorized copies that result from your breach (or “leak”), as opposed to a fee which takes into account all copies that came into existence as a result of your book falling into the wrong hands (this would be truly ridiculous and incalculable).
Now the real problem I have with these statements is that you categorize the third parties as “thieves”. If I find your book on the beach, I am NOT a thief. Period. YOU lost it. I am not guilty of anything whatsoever. You can not hold ME responsible for YOUR actions. Using “accidental finder” in quotes like that doesn’t negate this either. People really *do* innocently lose things and innocently find things. But if you think you can make the case that this third party IS guilty of some transgression/trespass/crime, then do it here. I don’t think you can …. prove me wrong.
Also, if you go with a flat fee, then if a thief thinks he can recoup that fee plus a significant profit by violating the terms and making copies, he will. The solution to this is to make the fee significantly high. Of course if you do this, you have now provided a massive disincentive to purchase the book in the first place!!! The risk of having to pay this fee would force me to keep tabs on my books constantly. I certainly would be reluctant to take a book with me on my vacation if I knew I had to contact the authorities if I lost it. Did I lose that book in Orlando … or was it Miami? Who wants that kind of hassle? All for a $10 or $20 book? I don’t think this is going to work out for you.
The only thing I will concede is that your use of “trespass” may be acceptable ( Although, Kinsella doesn’t seem to think so, and he’s a lawyer, so who knows). But it is certainly not the common use — which refers to transgressing onto real physical property.

greg December 22, 2006 at 3:25 pm

SR> And what happen in those cases are extreme shortages (Q demanded is greater than Q supplied).

Shocking! It is almost as if you’re saying markets may not be in equilibrium at all times!

SR> You also did not understand the significance of that definition of scarcity: product came to existence before markets were established. At the dawn of civilization, only those products that were scarce (for which demand exceeded supply at that moment without markets and zero prices) got to be owned and exchanged.

That was pure rubbish. Demand and supply are facts of the exchange market (whether barter or monetary), not a world without them.

Sasha Radeta December 22, 2006 at 10:58 pm

Well Greg,

It’s not my fault you tried to disapprove the basic definition of economic scarcity (QD>QS if P=0).

Of course that’s common sense and I don’t need to spend any more time on your jokes.

As far as your “rubbish” goes, you are forgetting that before the first exchange took place, we needed to have someone’s demand (wants and needs) and someone else’s supply (willingness and ability to sell). I’m not talking about hypothetical demand and supply curves based on past “facts of exchange”.

You just keep on joking.

——————

Fred,

Your “leak fees” are just forms of damages that confirm my basic point: you have right to formulate these damages in a free market contract – and to enforce them based on your private property rights.

However, a “flat fee” would be regressive and counterproductive. It would punish the small violators the most, hence stimulating larger violations. If all violators pay a flat fee of $1,000 – a person who only copies and sells one unauthorized item will be punished the most, while those who sell thousands of copies would laugh at this “punishment”.

That’s why the logical way of deterring contract violation is not a flat fee, but a fee that will be in proportion to the actual violation. Plus, if we say that the commercial use belongs to the author – than it is normal for him to create a contract, which will state that any unauthorized product from such use will belong to him.

As far as your “third party” issue goes – I think I already answered it. It is true that people lose their things all the time, but other people would be deterred from putting it into a commercial use in a perfectly free market. A finder does not have a better claim on found item than its original owner. Even without the actual reports to the “authorities,” the threat of a large tort case and theft claim is too great for anyone to ignore it.

Fred Mann December 23, 2006 at 1:31 am

What you say only makes sense if *ideas* are property. If the third party copies the book at the beach (forget the feasibility issue of that), what has he taken? Nothing. As you said above, ideas are not property.
In this case the third party has not trespassed/transgressed, and he certainly has not stolen anything if he leaves the book where he found it on the beach. He also has no contractual obligation with respect to the contents of the book.
So how does the book’s original owner have a claim against the third party?
“Hey, you stole the ideas out of my book! Put ‘em back in there!!!”

Sasha Radeta December 23, 2006 at 4:23 am

No Fred, you are incorrect.

In order to prove that someone replicated someone’s physical item (that contains idea) – contrary to the explicit terms of use – one never has to mention “idea theft.” All he needs to prove is that restricted physical characteristics of that item (like patterns of typed words) were beyond doubt replicated.

I also never said that the book owner has a claim against the third party. Now you are hallucinating. I only said that third party’s actions can result in a “TORT” issue between this finder and the buyer who lost the book.

Explanation for Fred: I am positive that you know that “TORT” is an injury – OTHER THAN breach of contract. I am sure that you also know that by referring to TORT – I automatically excluded the possibility that third party “finder” has any contractual obligations. We are talking about non-contractual injury that could be recovered by the buyer – in order to pay for his contractual liability to the author.

So why are you going back to Kinsella’s old pseudo-arguments that I refuted a long time ago? That’s not very nice.

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