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Source link: http://archive.mises.org/6055/patent-attorney-admission/

Patent Attorney Admission

December 22, 2006 by

I pointed out in There’s No Such Thing as a Free Patent that “The conventional defense of the patent system is that it is essential in order to stimulate creativity.” And here, on the widely-read Patently-O Patent Law blog, we have patent attorney Dennis Crouch casually admitting:

Patents are intended to lure potential inventors into the business of innovation. The truth is, however, that very little is known about how patents really drive innovation.

Sigh.
See also:

{ 259 comments }

Brian Macker December 31, 2006 at 3:52 pm

Sasha,

Here’s where I critique your idea.

In my example of the mold, exactly why isn’t Peter correct if we apply your theory? I don’t think Peter understands what I am saying yet but his objection seems valid in your case.

I will now make a better example to make this clearer. Restrict any discussion to this new example since the old one was not designed to challenge you. I am going to remove me from the example to make our discussion easier.

Suppose there is no contract whatsoever. A capitalist named Mr. Capitalist, who happens to be in the fabric business, owns this mold. The molds are for a particular kind of spindle used in the operation of my looms. He does not sell these molds or the spindles on the open market.

It took him a long time to produce this exact shape. Not only the intellectual effort but the physical effort of turning the idea into a physical object. All inputs and efforts were his. He has no employees and everything is automated with him doing all maintence and labor.

Mr. Hamburglar, a burglar, breaks in and steals the spindle mold which hasn’t been used in a decade and sits dusty on a shelf. He broke in to steal money but found none. He stole the mold because he thought it was pretty and might be worth something. He sells the mold to an artist, Mrs. Artist, for a couple dollars. The artist then produces a spindle from the mold as an object de art.

Then Mr. Hamburglar has a change of heart. Perhaps he “finds Jesus”. He buys back the mold from the artist, and shows up on Mr. Capitalist doorstep with mold in hand and gives it back. He turns himself into the police and Mr. Capitalist presses criminal charges for the trespass.

Mrs. Artist still has a spindle she produced from the mold. Mr. Hamburglar told Mr. Capitalist about his actions during his confession and about this copy. The production of this one spindle has had absolutely no effect on the value of Mr. Capitalists spindles since it’s just an art piece. Mr. Hamburglar is a thief and he really has little assets to begin with. Now that he is in jail there isn’t much to squeeze out of him.

There is no contact between Mr. Capitalist and anybody. Mrs. Artist unknowingly received stolen property was told it was stolen by Mr. Hamburglar and gave it back to him and he restored to her the money he took for it. Mrs. Artist in producing her “object de art” mixed her labor and raw materials into it. I see no reason on your theory for Mr. Capitalist having a claim of ownership over it or any say with what happens to it. So she retains it.

Mrs. Artist then takes her copy and produces a mold from this and yet more copies. One of these pieces of art ends up in the hands of a fabric producer named Mr. Fabric. He realizes its value and what it actually is and starts using it and mass-producing them for himself for use in his factories.

This of course lowers the value of your existing spindles and you suffer a drop in income.

That is the end of the example. Now the questions begin.

Do you think that Mr. Capitalist has the right to stop these fourth parties, Mrs. Artist and Mr. Fabric, from using the “unauthorized” spindles? If you don’t then you are not talking about copyright, but some weaker thing that really doesn’t protect Mr. Capitalist’s work product.

Remember there is NO contract with anyone. So “in theory” your argument cannot apply at all. You cannot protect much of anything. On what grounds do you have for suing this guy Mr. Hamburglar, beyond him keeping your mold for a few minutes? He didn’t even make a single copy of the mold.

Of course he stole the mold. Of course, it’s trespass. It was not his direct actions that caused the value of your spindles to go down though. He wasn’t the one who used the mold to make any other spindles. It was Mrs. Artist and Mr. Fabric that took the actions that lead to the reduction in value of your spindles.

It is entirely possible however that Mrs. Artist and Mr. Fabric might have been able to take such actions independent of what Mr. Hamburglar did. Mr. Fabric could have come up with the idea on his own and asked Mrs. Artist to produce such a spindle. Why not, it’s quite possible. Then the actions they took to lower the value of Mr. Capitalists product are perfectly valid.

Why should such a drop in value matter? As one of the other commenters pointed out, Mr. Capitalist doesn’t own the value of the object. I understood that from the beginning but I am NOT resting my position on that issue.

The burglar cannot be responsible for what money you might have made in the future. Heck if he stole a dollar from you and that caused you not to have the dollar to play the lottery that day and “your regular numbers” came up on the million-dollar prize it doesn’t mean he stole a million from you. It doesn’t automatically go from a petty crime to grand theft.

Sure the chain of events started by Mr. Hamburglar caused a drop in the value of your object but he returned your property. He did so voluntarily and you do not use the mold on a daily basis so he didn’t interrupt your business. In fact the dusty old thing was on a back shelf. He caused you no court costs because he turned himself in. You seem to think you can sue him for damages. What damages? Someone else is actually causing the damages to the value of your spindles, not Mr. Hamburglar.

With my way of thinking Mr. Capitalist can go after Mrs. Artist and Mr. Fabric on the grounds that he is part owner in all objects produced from his labor product but not explicitly relinquished or abandoned by him. There is a rational basis in my thinking that would allow a judge act in certain ways to remedy this and that would allow Mr. Capitalist to retain ownership over this work product even after the crime. He can, in a sense, take back the stolen goods and the receivers of the stolen goods really haven’t much to complain about.

There is no such remedy if you think this is purely about what you put in the contract and not about rights. Especially considering the fact that there is no contract.
Are you thinking Mr. Hamburglar is going to be fined for the millions in dollars of losses that resulted from the actions of Mr. Fabric and Mrs. Artist? Do you think Mr. Capitalist will make a tort against Mr. Hamburglar and then cross his fingers that Mr. Hamburglar tries to sue Mrs. Artist who then will sue Mr. Fabric.

The only one who actually has the funds resulting from these damages is Mr. Fabric. He’s the one who made thousands of copies of the spindle and earned money off it. He’s the one who made money off of Mr. Capitalists work product. Money he never would have gotten if it were not for the actions of Mr. Hamburglar. This was money that would have been earned by Mr. Capitalist instead if Mr. Fabric had not unjustly received the spindles. Mr. Fabric had years of research and development handed to him for essentially nothing. Do you think it right that he should now get to use this? At what point do the damages end?

So there you have it. Let me know where I have misunderstood what you’ve had to say. Where you think my mistakes lie. Where you think I have miscommunicated. I’m not going to be amenable to any arguments based on how ignorant you guess I am, so please don’t waste my time with that. Please, oh please, don’t act as if you’ve read this if you haven’t.

Brian Macker December 31, 2006 at 4:10 pm

Sasha,

I wrote the above before you posted your replies. I then went on a 7 mile hike and came back. I proofread it and posted it. I then saw your addtional replies. So don’t be surprised if it doesn’t address something.

I think the example will probably capture some of the problems the other people see with your treating this as simple tort. You cannot support copyright in this way from what I can tell. The problem is not with the Third party, Mr. Hamburglar. The problem is with fourth parties like Mrs. Artist and Mr. Fabric.

Please forgive me that in my example I switched and called “Mr. Capitalist” by the pronoun “you”. I also might have called “Mr. Fabric” the name “Mr. Spindle”. If you want I can fix and repost. Otherwise I will assume you can correct for these minor errors.

Stephan Kinsella December 31, 2006 at 5:26 pm

Brabson, re your “scientific poll” comment above–I did an informal one earlier, see here. I think the respondents were mostly patent attorneys and Austrian-libertarians, given where I posted about it. Overwhelmingly anti-IP.

Sasha Radeta December 31, 2006 at 5:55 pm

Brian,

What Peter’s objection “seems valid” in my case? You both seem confused about the difference between torts and breaches of contracts – and what injury is caused to someone whose mold is stolen by some “third party”.

Your example is full of trivial details. Who cares if “Mr. Hamburglar is a thief and he really has little assets to begin with?” If Mr. Hamburglar attacked and permanently crippled someone, would you acquit him of that crime – because he is poor and unable to support this disabled person? Tsk, tsk, tsk… Anyway, you wrote so much nonsense that it would tame hours only to decipher it. I will just focus on your direct questions to me and I will disregard everything else.

You asked the following:

—–

1. “Do you think that Mr. Capitalist has the right to stop these fourth parties, Mrs. Artist and Mr. Fabric, from using the “unauthorized” spindles?”

NO SIR! The fifth party (Mr. Fabric) in your example did not do any trespass against Mr. Capitalist.

However, the fourth party (Mrs. Artist) did not own the mold which she used to produce her copy. You said that she was unaware that the mold was stolen (bona fide purchase). FINE! She will not be prosecuted for that purchase of stolen goods. However, regardless of her bona fide purchase – the legal owner of that mold was Mr. Capitalist – at all times. That’s the principle of “Nemo dat quod non habet.” The first copy that Mrs. Artist produced is the result of unauthorized use of Mr. Capitalist’s mold. She was responsible to return that first unauthorized copy to Mr. Capitalist, because the only legal way in which she could have obtained it is by purchasing it from him. Therefore, she will owe a large sum of money to Mr. Capitalist – the same amount of money that she would normally have to pay for full ownership of some invention (minus the insignificant cost of her inputs) – in order to have legal rights of the full commercial use of that item.

And if you think about this – it’s normal that Mrs. Artist is responsible for compensating Mr. Capitalist for something that normally costs a lot of money to obtain legally.

Mr. Capitalist will hold the thief responsible for loss of earnings in the amount of all other spindles in the market – that otherwise he could have sold (times punitive damages, perhaps based on Rothbard’s “two eyes for one eye” principle, in order to deter theft).

——

2. “If you don’t then you are not talking about copyright, but some weaker thing that really doesn’t protect Mr. Capitalist’s work product.”

NO SIR! You are confusing a tort issue with violations of contractual copyright (which was our subject – and one that is the most confusing, if you think that the buyer of the book’s personal use becomes its owner).

Enough for this year! It’s time to party!

Sasha Radeta December 31, 2006 at 6:54 pm

Oh, I didn’t see Stephan’s comment…

I have to say one more thing before I step out : )

Stephan,

Your quantity of writing is not supported by any quality. Most of the anti-IP crowd is trying to battle with common sense and they are loosing that battle.

The fact is: It costs a lot of money to obtain the co-ownership rights over someone’s manuscript (for publishers), or to get the co-ownership of some invention (for firms).

You cannot lawfully get those valuable ownership rights for free by:
- breaking your valid, free-market contract (as Cosmin advocated)
- stealing someone’s property and using it without authorization to create “your own” copy (as Peter advocated, and Brian come to believe).
- allowing a third party to freely commit tort, if the injury pertains to someone’s contract (as you tried to imply, contrary to common law)

Once you understand these points, you will stop with your anti-copyright communism, and you will join great Murray Rothbard in advocating voluntary, free-market copyright contracts.

HAPPY NEW YEAR TO EVERYONE!

Brian Macker December 31, 2006 at 7:27 pm

Cosmin,
“But did anyone sell a breeding (not spayed) animal with a condition in the contract that said it can’t be used for breeding?”

Yes, some breeders sell their dogs unspayed because they are too young to spay but the contract stipulates that you must spay the dog in a certain time frame. If you don’t the contract has been broken and they get the dog back.

Peter December 31, 2006 at 7:34 pm

If you steal Brian’s mold and you use it for creating 50 copies, you are actually causing the loss of earnings to Brian – in the amount of 50 copies.

Perhaps, but how is that relevant? He doesn’t have a right to “earnings”. If he owns a stall selling apples at the side of the road, and I open my own stall selling apples, I’m causing him a loss of earnings, as well. Do you think that’s a tort, too? Potential future earnings is simply not a property.

Brian Macker December 31, 2006 at 7:36 pm

Sam,

I didn’t see your post of 12:18 AM last night until just now. Perhaps that makes my response make more sense.

I was not responding to your moral question. The answer to that is why shouldn’t he? If he “invented” this purple apple and was sole owner of it then why shouldn’t he be able to retain ownership rights over it? It violates no one elses freedoms.

If he sells these apples with the condition that he owns the seeds which must be destroyed then if you don’t want the apples under those conditions then don’t buy them.

Brian Macker December 31, 2006 at 8:22 pm

Peter: “Assume there are no property rights. Then you have no right to eat the food that keeps you alive, for instance. Therefore you’re dead and not in a position to engage this argument. Since you’re not dead, you must accept that it is possible to obtain a property right in food (so I know that if you say “there are no property rights”, you must be lying!) Etc. See Hoppe for a more complete (and lengthy) explication.”

Devil’s advocate: Then why aren’t all the animals dead? The do not recognize property rights. For the most part they run on the rule of might makes right. Property rights are durable and animals don’t recognize them the way most humans do. Besides I wouldn’t be dead since if you left your apple on the beach I’d eat it.

Brian’s analysis: The problem here is that if a foundational rationalist will a always be beaten by the philosophical skeptic. The skeptic does not share any respect for reason and therefore can use reason to undermine the foundationalism. This is precisely because reason is not foundational.

Peter was playing both roles in his argument with me. He was assuming rationality had to be based on foundationalism. He then assumed thatmust be my position and that my argument was in fact foundationalist. Then he was taking the position of the skeptic to attack me. Thus he was setting up his own straw man for defeat.

If Peter continues to argue from a foundationalist position has he has done here then I can take the position of philosophical skeptic to defeat him. He will not be able to defend property rights foundationally. The process is long but we will eventually get to the point where he realizes there is no foundation. He will not be able to “prove” that property rights exist.

There is nothing wrong with rationalism as long as it’s not foundationalist. Such rationalists are pretty much immune to attacks by the philosophical skeptics. They can just say “I hold that belief tentatively pending contrary evidence”. They can even do that about their non-foundationalism.

Brian Macker December 31, 2006 at 8:28 pm

Peter,

“He doesn’t have a right to ‘earnings’.”

This is correct. I only have a right to ‘my’ earnings, not earnings in general.

So the question is under the example is why should Mr. Fabrics earnings be considered the property of Mr. Capitalist.

Brian Macker December 31, 2006 at 8:46 pm

Happy New Years! I’m outta here.

Stephan Kinsella December 31, 2006 at 9:27 pm

Sasha:

1. “Do you think that Mr. Capitalist has the right to stop these fourth parties, Mrs. Artist and Mr. Fabric, from using the “unauthorized” spindles?”

NO SIR! The fifth party (Mr. Fabric) in your example did not do any trespass against Mr. Capitalist.

However, the fourth party (Mrs. Artist) did not own the mold which she used to produce her copy. You said that she was unaware that the mold was stolen (bona fide purchase). FINE! She will not be prosecuted for that purchase of stolen goods. However, regardless of her bona fide purchase – the legal owner of that mold was Mr. Capitalist – at all times. That’s the principle of “Nemo dat quod non habet.” The first copy that Mrs. Artist produced is the result of unauthorized use of Mr. Capitalist’s mold. She was responsible to return that first unauthorized copy to Mr. Capitalist, because the only legal way in which she could have obtained it is by purchasing it from him. Therefore, she will owe a large sum of money to Mr. Capitalist – the same amount of money that she would normally have to pay for full ownership of some invention (minus the insignificant cost of her inputs) – in order to have legal rights of the full commercial use of that item.

This is utterly ridiculous. The bona fide purchaser of stolen property arguably has to return it on demand to the real owner. That in no way implies that the information gained by the BFP in the meantime may not be used by them.

Moreover, Sasha is ignoring the “real third party” problem here, which is your “fifth party,” Mr. Fabric. There is no conceivable theory by which to nab him.

Moreover, Sasha keeps assuming you can ensnare all conceivable third parties by some form of tort. But this is not true. Her theory assumes that anyone has to somehow “handle” the object owned by another. Let’s take a very very clear example. A writes a novel. It is not published. B breaks into A’s house and puts his thumb drive into A’s computer, and copies the file containing the novel’s text. Then B puts a big electronic billboard up on his lawn, scrolling the text of the novel over and over. B’s neighbor, C, is sitting on his porch having a Bud and videotaping the cloud formations over B’s house, and inadvertently captures the text of the novel flashing on B’s billboard.

Now, C has the text of A’s novel in his camera. He did not commit any tort against B, or A. By what conceivable private law, libertarian-compatible cause of action can A (or even B) stop C from publishing that novel??

Your quantity of writing is not supported by any quality. Most of the anti-IP crowd is trying to battle with common sense and they are loosing that battle.

Actually, you are wrong–there is a growing anti-IP sentiment, as anyone can see.

The fact is: It costs a lot of money to obtain the co-ownership rights over someone’s manuscript (for publishers), or to get the co-ownership of some invention (for firms).

Thanks. As a published author and practicing patent attorney, I didn’t know this. Tell me more, Sasha.

You cannot lawfully get those valuable ownership rights for free by:
- breaking your valid, free-market contract (as Cosmin advocated)
- stealing someone’s property and using it without authorization to create “your own” copy (as Peter advocated, and Brian come to believe).
- allowing a third party to freely commit tort, if the injury pertains to someone’s contract (as you tried to imply, contrary to common law)

It’s easy to imagine cases where a third party acquires *information* without ever “handling an object” and thus is never in breach of contract nor committing a tort. An obvious example is the Internet–you can get tons of info over it now–without committing any tort. Your apparent notion that if an action of yours causes another contractual liability then you are committing a tort–is utterly absurd and unsupported by libertarian theory or even conventional legal theory.

You are just a scientistic punk, Sasha.

Peter December 31, 2006 at 11:33 pm

Then why aren’t all the animals dead? The do not recognize property rights. For the most part they run on the rule of might makes right.

Animals do recognize property rights; not to the extent or with the sophistication of humans, but have you never owned a dog? Or knew someone who did? Seen it barking when strangers come onto your property? Animals in the wild mark and defend their territory, too. And yes, they also largely work on the principle of might makes right. And very many die every day.

Besides I wouldn’t be dead since if you left your apple on the beach I’d eat it.

I wouldn’t leave my apple on the beach, since the concept of “my apple” requires that which we’re assuming doesn’t exist: a property right. So if I have an apple in my hand, it’s not my apple. Why wait until I leave it on a beach before you eat it? Why not just take it out of my hand and eat it? Knock me on the head first, perhaps. But you’d have the apple in your hand and someone could come along and knock you over the head. Etc. The fact that most people don’t engage in such behavior on a regular basis demonstrates a “built in” recognition of property rights.

The problem here is that if a foundational rationalist will a always be beaten by the philosophical skeptic. The skeptic does not share any respect for reason and therefore can use reason to undermine the foundationalism.

Depends what you mean by “beaten”, I guess. If you consider repeated “am not!”, “are too!”, “am not!” to be an “argument”, and want to declare yourself the winner, I’m not going to stop you. But it’s not very productive.

Brian Macker January 1, 2007 at 10:24 am

Devil’s Advocate: “Of course it wasn’t your apple. I was just humoring you. But now you are getting the idea.

Animal territories are not an example of property rights in the sense that the other animals respect these boundaries because they believe the other animals “own” the land. In fact, it’s just a matter of who’s strongest.

There are other animals that get along just fine not even respecting rules against cannibalism.

Plus there are plenty of examples throughout history of people not respecting property rights and not just flipping on their backs dead as you claimed.

There is no reason why my not “owning” an apple prevents me from eating it. It’s not ownership that allows you to eat it but merely possession. We all know possession is not ownership.

Brian Macker January 1, 2007 at 11:13 am

Peter,

The foundationalist says there is a foundation to be found. He is making a positive claim that something can be “absolutely proved”. He is claiming that there is a “proof” for whatever he says. So his very claim is that the argument can be settled in a straightforward way.

You claimed to have “proved” property rights by the fact that I would starve without them. That simply isn’t true. We can survive without property rights.

In fact natural rights in general haven’t been “proved”.

Yes, this means that we will be arguing all day. However, that is exactly what I am complaining about. It’s you who have been arguing as a skeptic. Your responses have been just a manner of denying that I can “prove” that someone has a right to the fruits of their labors.

In my example, the sales of Mr. Fabric are obviously the result of the labors of Mr. Capital but you deny him the right to the fruits of his labor. He worked damn hard on his invention and now you think the other guy has the right to benefit from those labors without the permission of Mr. Capital.

I have shown exactly how Mr. Capital can claim ownership over the unauthorized copies, by the unauthorized mixing of his labor product with Mr. Fabrics raw materials. Yet instead of addressing this you merely deny.

That it is so much easier to steal the labor product after the fact than to produce it in the first place is immaterial. Mr. Fabric did not expend the effort that was required to produce those spindles. That effort was expended by Mr. Capital. That Mr. Fabric was able to use Mr. Capitalists physical property without his permission because of a criminal act doesn’t mean he should be able to keep what he made literally from Mr. Capitalists property.

Mrs. Artist was working with stolen property. She literally made her “art works” from Mr. Capitalists property. So Mr. Capitalist has a ownership claim over those works. When Mr. Fabric made his Spindles from these “art works” he was again doing so with Mr. Captialists property.

The spindles that are in the possession of Mr. Fabric would not exist without the efforts of Mr. Captialist. Efforts for which he was not compensated. Efforts which he did not give permission for anyone to utilize.

Whether to expend those efforts went into Mr. Capitalists decision to invest his capital in inventing the spindles. He calculated how much money he was likely to save using the new spindles vs. the estimated development costs. He then expended those efforts and was in a position to reap the benefits (fruits) of his labor. However along comes Mr. Fabric to steal the efforts of his labor.

Mr. Fabric perhaps wasn’t aware of the fact that he was stealing because he may not of known how he came into possesion of the spindles. That doesn’t matter any more than if someone gets stolen goods unawares.

That Mr. Fabric mixed his raw materials with Mr. Captialists productive goods is not the fault of Mr. Captialist and is no reason whatsoever to let Mr. Fabric keep the objectively valuable product of Mr. Capitalists efforts.

This wouldn’t neccesarily be true even if the mixing accidentally happened in the other direction. Suppose Mr. Burgalar had stolen pig iron from Mr. Fabric’s wearhouse and sold them to Mr. Captialist who then molded them in to Spindles. Does Mr. Captialist now owe Mr. Fabric the resulting spindles? Of course not. What he owes back is ingots of pig iron and nothing more. Either that or he can recompense Mr. Fabric with cash.

This is true regardless of how cheaply the reproduction process is. The manufacturing process is cheap because of the mold not the cost of the raw materials. In fact one would suppose that the cheaper the reproduction costs due to the raw materials then the lesser the value in the final spindles that are due to Mr. Fabrics efforts and the less recompense he should get.

I don’t see why if Michaelangelo were to, by accident, create a statue with a stolen piece of marble that he would owe his final work product back to the victim. He would only owe a block of marble of the same quality. That’s it.

I believe this even obtains if Michalangelo were to steal the marble. In that case he only owes a piece of marble back, any incidental damages, plus court costs if any, an perhaps some jail time. He doesn’t owe a million dollar statue in recompense for a $100 chunk of marble.

Brian Macker January 1, 2007 at 11:51 am

BTW, I HATE the fact that the software industry has moved from using copyright to patents. I also hate the fact that they are issuing patents for the most obvious of ideas.

That doesn’t mean however that I will not use patent law to fight back.

Sasha Radeta January 1, 2007 at 1:27 pm

Geez people, didn’t you have something better to do?

Let’s go one by one.

—-

Peter,

It’s a trespass when you use someone’s item you just stole. In tort law, you will not be only responsible for the direct theft involved (which maybe $0 like in my example in which someone’s intentional blocking of your garage causes you financial injury), but also for all measurable harm of your action. If you produced 50 copies with someone else’s mold – that is a clear trespass. If you decide to keep those copies, you will be responsible for the owner’s loss of earnings – because legally, the only other way to obtain those copies is by purchasing them from this owner. That’s common law and it’s not a matter of dispute.

—–

Poor Stephan,

There is no need to keep imagining that I am a girl. It’s kind of disturbing. Anyway…

You’re pretending that you can’t apply simple legal principles to such an easy case. You are also ignoring that trespass lies for unintentional, as well as for intended wrongs.

If Mr. Capitalist is the lawful owner of the mold that was stolen (and he was) the any use of this product by bona fine purchaser was unauthorized.

In Brian’s example the purchaser of stolen mold caused a real harm to the owner – her unauthorized use created something that could have bee obtained only from the owner – for some large sum of money.

I REPEAT: You cannot lawfully obtain some ownership rights as the result of trespass. Co-ownership over some invention would legally cost you a lot of money to obtain – and you cannot get it for free by the act of trespass.

But Stephan’s sense of humor really gets hysterical in the last part of his message. Regarding my (common-law) explanation, she states:
“Sasha is ignoring the “real third party” problem here, which is your “fifth party,” Mr. Fabric. There is no conceivable theory by which to nab him.”
WOW!
Anybody home?
I just explained that the bona fide purchaser – who wishes to keep her ownership rights over the product of her unauthorized use – will PAY for co-ownership rights that she used over a product (that otherwise would cost a lot of money to get). So by paying to become the authorized producer, this fourth party obtained legal rights for sales to fifth party and any other parties. There is no need to “nab” an innocent fifth party, because the fourth party will pay for expensive rights that will make her copy (which came from a trespass) rightfully owned.

In your silly and unrealistic example, person who committed a trespass will be responsible for the loss of earnings to the author. It legally costs a lot of money to buy co-ownership rights over someone’s unpublished book and then to put it in “a big electronic billboard up on your lawn, scrolling the text of the novel over and over.” That trespasser will have to pay for that expensive harm he caused – and it will be perfectly OK for some third party to publish that book, because he got it perfectly legally from a person who paid a large sum of money for publishing rights. Of course, no one sane would be so stupid to give away something that expensive, but I did not expect a better example from you.

And then Stephan gets even funnier. She says: “It’s easy to imagine cases where a third party acquires *information* without ever “handling an object” and thus is never in breach of contract nor committing a tort.”
That’s funny!!!
: )
Again you have to impute statements I never made. I never claimed that if you offer some information to another person – that you could sue that person if he uses it! That’s why smart authors will insist on terms of use contracts before someone can access their valuable information.

——

Brian,

Go back to Mises and the definition of ownership. Than read my response to Peter and Stephan. You got some basic concepts all wrong. Fourth party in your example (unintentional trespasser that became aware of her unauthorized use) has to pay the amount necessary to obtain co-ownership over that invention – in order to remedy the owner’s loss of earnings (that he would otherwise have if the fourth party legally obtained expensive co-ownership of his invention). The fifth party (purchaser) will be perfectly fine, because the fourth party will legalize her actions.

Sasha Radeta January 1, 2007 at 2:19 pm

And please stop with “animal territories” and other nonsense. Our topic here is not someone’s reasoning process or discussion style (Brian and Peter are turning into Sione).

We’re talking about copyright and basic issues are following:
- can you obtain the co-ownership over someone’s invention or creation by:

a) breaking the contract that regulates terms of use
b) stealing it from the owner and than using it to reproduce “your own” items, without ever paying for the author’s loss of earnings or any punitive damage for tort.
c) purchasing the full “ownership” of a stolen good (otherwise, when purchased legally from the author), and hence using someone else’s product without authorization to make “your own” copy – without anyone paying anything to the author for his loss of earnings that resulted from that trespass.

Common law’s answer is: NO! (In spite of the stubbornness of some people who tried to negate copyright on the abovementioned, absurd grounds). Copyright is coming from firm grounds of private property rights, making it impossible for mediocre authors in a desperate quest for originality to find a tort or breach of contract that would make it unenforceable in a perfectly free-market.

Sasha Radeta January 1, 2007 at 2:34 pm

Correction:

c) purchasing the full “ownership” of a stolen good (otherwise expensive, when purchased legally from the author)…

greg January 1, 2007 at 6:25 pm

BM> You are arguing from an implicit foundationalist viewpoint. It’s a philosophical term. Go look it up. I am not a foundationalist. I don’t believe that we can find ultimate absolute grounds for believing what we do and I don’t operate on such principles.

You sure can side-track a discussion. I never made any mention of “foundational philosophy,” you did. I gave you a generic definition, and you still didn’t get it. The drift is strawman. I never made any mention of “absolute proof,” especially in the deductive sense. (I’ve argued the opposite in other conversations.) In point of fact, I don’t have to “prove” anything since I’m not asserting a positive (ideas as property).

For example, you never established a basis for what you call “co-ownership” of physical material that has some correlation (How much correlation is enough? How do you objectively measure it?) to some other physical material — physical material that embodies an idea. That basis is a foundation, in the basic sense of the word “foundation.” You are off in the weeds with your “absolute grounds” and “philosophical foundationalism” commentary. Ultimately you would need to establish a very good case for ideas as property. You have not done so, and a million words of circumlocution won’t skate you past the goalie.

BM> Properly understood science is not foundational.

Good grief. All language at some point reduces to “definitional,” “axiomatic,” or “self-evident.” It is inescapable because language is symbolic, nothing more than an abstract model for (hopefully) reality; this is the basic nature of reasoning (abstraction) and the basic problem of the philosopher, and is the source of the skepticism regarding “foundationalism.” But if you want to get hung up on that, then you are a nihilist, and there is nothing to talk about, by definition of nihilist (laughs). If we can’t agree on definitions and bases (foundations), there is nothing to talk about.

Speaking of foundations and science, I used this text for an EE elective: http://www.amazon.com/Foundations-Microwave-Engineering-Robert-Collin/dp/0780360311/. Amusing, eh?

BM> Efforts [(ideas)] which he did not give permission for anyone to utilize.

See what I mean about you talking out both sides of your mouth?

BM> [T]his means that we will be arguing all day.

Not with me since I don’t think you or Sasha are clear enough on the rudiments, er, I mean foundations. Also, my blogphilia simply is not that great — although it is a bit larger than my spare time.

Sasha Radeta January 1, 2007 at 6:41 pm

Useless and irrelevant comments Greg…

I explained problems with anti-IP reasoning in three simple points. There were some insane attempts to relativize harms caused by trespass of “third” and “fifth” parties, but all that failed against simple and logical tests of common law. There is no way to abolish free-market copyright, unless you want to legalize contract violations and tort, i.e. abolish property rights. I couldn’t have been any clearer on these “rudiments”.

PS
Why would anyone care about your ramblings about “foundational philosophy” and how you view Brian’s reasoning process? Stick to our topic for goodness sake.

Mark Brabson January 1, 2007 at 7:09 pm

After 221 posts, does anybody remember what the topic was?

Seriously though.

I would never question free market “copyright” contracts. Nor any agreement freely entered into.

From the beginning, the only thing I ever questioned was “Government” copyright laws.

I don’t think anybody could seriously question the validity of a copyright clause in a freely negotiated contract.

greg January 1, 2007 at 7:44 pm

SR> I explained problems with anti-IP reasoning in three simple points… I couldn’t have been any clearer on these “rudiments”.

Ah, heck. I guess I missed them.

SR> Why would anyone care about your ramblings about “foundational philosophy” and how you view Brian’s reasoning process?

Man you are dense.

SR> Stick to our topic for goodness sake.

I’ll go ahead and leave that up to myself.

MB> I would never question free market “copyright” contracts. Nor any agreement freely entered into… I don’t think anybody could seriously question the validity of a copyright clause in a freely negotiated contract.

Nor do I. NDA’s are everyday private occurances. When Shasha argues “There is no way to abolish free-market copyright,” he’s conjuring up phantoms. His ideas about private application to third parties range from silly to shifting the burden of proof so much that “idea owners” would have no where near the state granted protection they currently have.

Sasha Radeta January 1, 2007 at 9:18 pm

Greg, everything isn’t “up to you” when it comes to our postings here. Right above the comment box it states: “Post an intelligent and civil comment.”

Your recent comments do not satisfy the former prerequisite. If we could post anything – regardless of our topic – what would prevent spammers from posting sports or weather discussions here?

Plus, that nonsense about “foundational philosophy” is incredibly boring.

Sasha Radeta January 1, 2007 at 9:37 pm

Mark Barbson,

More power to you, because I am also against government’s regulation of copyright, commerce, you name it. But the crowd here is in completely different mood. Look at Greg, for example. He blabs something about “idea owner” and “private application to third parties” – but he is blind to the fact that you cannot violate someone’s copyright without committing a tort or violating a contract (terms of exchange). And you also have Stephan Kinsella, whose only agenda is to advocate unrestricted, unauthorized access to someone else’s property – and to “rewrite” legal theory against any norm or common sense – in order to “prove” that such communism would emerge if state was abolished. Anarcho-communists create a lot of confusion, because they also call themselves “libertarian.”

Sione Vatu January 2, 2007 at 12:31 am

Sasha

So all your puff and cant is based on a concept you can’t define. The term “legally owned” is a bit of a catch-all. Like Brian’s various “rights” it can mean anything and nothing. Unless you define it and explain yourself it all remains floating abstraction. In essence your position would then appear to be little more than: “I like copyright. Copyright is legal. Since copyright is legal I can make legal contracts based on copyright. Now let’s discuss all the wonderful variants of contracts that are available for me to make up.” That would seem to be as far as you’ve managed to think this through. Your position statements thus revealed as baseless. Oh dear!

You are the one asserting “copyright” as reliant on a right of ownership over property (in which case it is a particular or special type of ownership in a particular or special class of property). You assert that due to your special or particular right, other people are to be prevented from exercising their ownership rights over their property (such as real or chattel property). As it is you who are asserting the positive, the burden to prove it (and answer the questions) falls directly and totally upon you. It is un-necessary for me or anyone else to prove the negative for your assertion to be considered unproven, false and/or worthless. It is you who need to explain the idea to my satisfaction and validate it to my satisfaction. I am under no obligation to show a case against your idea. All I need do is see whether you can demonstrate a valid case or not. So far you have shown you can’t (and I’ve been easy on you by taking you down through some of the steps necessary- I could simply have called for a formal proof and left you to founder). Proof of Positive is a very basic rule of discourse and argument. You need to consider it carefully and understand it thoroughly prior to continuing with your apparently baseless claims. Do you get that? Can you understand at least that much? Fool!

The trouble with your arguments is that they are circular and self-referential. You deal in compartmentalised concretes and evade principles, premise, derivation and validation. I suspect you are not even clear in your own mind what the definitions of some of the terms you use actually are. This tends to confirm your ideas regarding copyright are indeed floating abstractions and hence false.

My questions to you are intended to get you to state your premise, show your derivations and concepts, validate and prove them. Your behaviour thus far has been to apply polemic techniques, blow off some steam, make assertion (like “I already answered that in detail” and the like- are you a grand-standing 2nd class bull-shitter or what!), evade direct answers, misrepresent questions put to you, spit bile and hide. You are really struggling and well out of your depth.

Now I (and likely other people reading this thread) would appreciate it if you’d stop telling lies and stick to the topic. It’d be nice to see you actually address the questions put to you and attempt an honest answer. Stop evading.

Sione

PS. Something that is “your product” can be that which is unowned or not property. For example, you produce CO2 when you exhale. Is this property? It is your product in the sense that you produced it. Under certain circumstances it may be possible to claim the CO2 as your property but for that to occur one would surmise that certain conditions would need to be met. What they may be is the interesting question to ponder. What principle need be recognised? What would then be the difference between non-owned product and owned product (hence property)?

Sasha Radeta January 2, 2007 at 1:24 am

Oh poor Sione,

I already stated my premise, showed my derivations and concepts, validated and proved them. But it is not my fault that you were not able to understand it. I’ll try to simplify it even more for you.

You have definition of ownership provided by Mises just on these threads (one of many available). And we all know what ownership means – and I even had a discussion with Kinsella on how ownership is acquired.

I never said that copyright is some “special kind of ownership” as you (probably unintentionally) lied. All I said is that if you “own” some physical creation – you have a full control of the services that can be derived from a good. And if you own something, you can sell it only for personal use (rent it) – meaning that you restrict some undesired uses, like unauthorized reproduction. That’s where copyright is coming from – your full ownership of some physical object and someone’s voluntary agreement to use it only in certain, restricted ways.

So to cut your never-ending B.S.:
I proved that in cases in which the author is not negligent – there is no way to violate his free-market copyright without committing a violation of valid contract (theft) or without committing a tort (those examples in which there is no contract with anyone, but author’s item gets stolen). I proved that claim in all of the examples that Kinsella & co. tried to think of. You are probably unable to think of one, so you decided to bore me to death as a new strategy.

PS
Again, you are trying to be smarter than you actually are. As far as economics is concerned, CO2 is not normally “my product,” (because the possessive adjective is implying ownership) – but it is a “product of my body.”

Oh, did you finally learn that TB causing bacteria are not a “strain of virus”? Good luck with your studies.

Sione January 2, 2007 at 1:48 pm

Sasha wrote: “I already stated my premise, showed my derivations and concepts, validated and proved them.”
Sasha, you are telling furfies again. No wonder the good doctor called you a liar!
What you have done on this thread is assert that you’ve stated premise, showed derivations and concepts, validated and proved them. You have not accomplished that. Asserting and doing are two different things.
Note you have not yet answered all the questions I directed to you. For instance I asked you to explain your term “legally owned”. Was that too tough for you? Can’t you do it? Why so scared to commit to an answer? Come on man, have a go.

Sasha wrote: “You have definition of ownership provided by Mises just on these threads (one of many available).”
Sasha it was YOU I asked for the definition, not Mises. The comment you make that there are many definitions available is just the reason I need to know from you what YOUR definition is, besides which, had you done as asked you’d not have needed to direct me to Mises’ definition of property now would you? You wouldn’t have needed to because I’d have been able to read yours right here, on this thread.

Sasha writes: “And we all know what ownership means”
Is that so? But you wrote that there are many definitions. So how is anyone supposed to know which one you are relying on?
In this instance the trouble with your approach is that you are relying on a claim to social metaphysics. The collective knows the answer. This is another reason I need to know from YOU what YOUR definition actually is.

Sasha writes: “and I even had a discussion with Kinsella on how ownership is acquired.”
Really? How nooice of you. BTW he is correctly referred to as Dr Kinsella. Have some manners when discussing your betters!

Sasha writes: “I never said that copyright is some “special kind of ownership” as you (probably unintentionally) lied.”
Ah but it’s already been shown that you are the liar on this thread. How very dishonest you have been. Interesting how you now claim to be able divine the intentions of someone halfway around the World on the basis that he asks questions you’d rather not face up to. And rather than face the substance of the issue raised you run off and concentrate on the non-essential yet again.
I have not written that Sasha referred to copyright as a “special kind of ownership”. It is dishonest of you to mischaracterise what I wrote. So stop it! I chose the words I did since copyright is not the same as ownership of real estate or chattels or the regular asset classes. Your copyright appears to be a type of “ownership” that grants someone control over the property of other people. The choice of the word “special” is to mark the separation between (say) my ownership of land and my businesses and your copyright claim of restriction over them. It certainly is a special power or authority you are claiming.
If it makes you feel better you could substitute another word for the word “special” (perhaps “specific” instead of “special” or “particular”- whatever is used the separation should be clear). But why are you again concentrating on the non-essential? Deal with the point at issue. Deal with the substance for a change.

Sasha: “All I said is that if you “own” some physical creation – you have a full control of the services that can be derived from a good. And if you own something, you can sell it only for personal use (rent it) – meaning that you restrict some undesired uses, like unauthorized reproduction. That’s where copyright is coming from – your full ownership of some physical object and someone’s voluntary agreement to use it only in certain, restricted ways.”
This is obtuse. You are mixing all types of property and many possible situations into one collective jumble in an attempt to smuggle your copyright idea in there as a regular type of property right. It isn’t. It is something specific and it is different. For one thing, copyright grants a right of control over property not owned by the copyright holder. By what authority is this to occur? Why so?
One interest I have in your argument relates to how you can properly restrict “unauthorised” uses of certain ideas for that is indeed what you are setting off to achieve. So far you’ve indicated you’d use a beyond reasonable doubt test to determine whom the “originator” of an idea was. Then you’d grant that person a power of copyright based on a so far unexplained concept of “legal ownership”. That test results in certain classes of entity or property being impossible to “protect” for reasons of complexity and difficulty. It’s an arbitrary separation and likely to be arbitrarily applied when reduced to practice. How is that a principled approach? Putting that aside for the moment, I’m very interested in the derivation you use to establish the copyright you assert and the “legal ownership” it relies upon. Hence the questions.

Sasha: “I proved that in cases in which the author is not negligent – there is no way to violate his free-market copyright without committing a violation of valid contract (theft) or without committing a tort (those examples in which there is no contract with anyone, but author’s item gets stolen). I proved that claim in all of the examples that Kinsella & co. tried to think of. You are probably unable to think of one, so you decided to bore me to death as a new strategy.”
No. You have not proved anything much yet. Discussion of a few interesting scenarios & examples is about as far as you’ve gone with this. Not proof. Not really dealing with or explaning of fundamentals. Still, if what you’ve just claimed here were indeed the case, surely you couldn’t object to being asked to explain some of your terms and answer a few questions about your argument and its source. Start with that term “legally owned”. Give that a try will you.
Goodness gracious, you are getting precious though!
BTW do you know what a formal proof is? Do you understand what is necessary to establish one?

Sasha; “As far as economics is concerned, CO2 is not normally “my product,” (because the possessive adjective is implying ownership) – but it is a “product of my body”.”
Idiot! Can’t you get to principle? Look at the questions following the example and try to answer those you fool! That’s the point. Now apply it to your copyright idea and see where it leads. Come on man. Stop being so compartmentalised. Try to think about the essentials! Stick to the point.

Sione

Sasha Radeta January 2, 2007 at 2:47 pm

Sione,

I’m not a liar, but you are seriously challenged (your verbal diarrhea does not hide that fact). I explained and proved my position many times before. Your inability to understand it is not my concern.

Why would I want to give my own definition of ownership – when definition of Mises is perfectly fine???? Are you insane? I am not relying on any metaphysics – I am relying on your sanity to know what ownership is. I’m sorry I overestimated you.

By the way, Stephan Kinsella is not a doctor. So you can stop your insane comments about my “disrespect” for Kinsella, when I didn’t call him a doctor. He does not have a higher level of education, but that did not stop him from arrogantly insulting me. AND STOP CONCERNING YOURSELF WITH MY PERSONALITY AND STICK TO OUR TOPIC.

Plus, stop calling me an “idiot” – right after you demonstrated you own unbelievable level of stupidity. When you say that CO2 is your product – that is economically incorrect!!! And I will not apply your stupidity and ignorance to “copyright idea.” Contractual copyright is only a different name for limited terms of use of some physical piece of property.

—–

You stated that my concept of copyright “grants someone control over the property of other people”

THAT IS A LIE.

I only said that if person has ownership over some item – that he has the right to rent it, or allow its certain use, while restricting the others.

If a copyright contract states that in cases of violation of those terms all damages in the amount of unauthorized copies and/or their profits will belong to the author – than property title of these items transferred to that author (by the word of voluntary, free market contract). So copyright does not “grant someone control over the property of other people” as you stated… It actually grants me control over my own property – including specified damages for which I hold the ownership title based on conditions of exchange (total price for the use of my property).

There were different scenarios that tried to challenge the concept of copyright… Some people asked:
Q- What if someone steals your item before you rent it and there is no copyright contract to protect you from unauthorized copies.
I answered:
A- That is the case of tort, not a copyright violation. Copies produced as the result of unauthorized use of my property (trespass) – will be taken away from the trespasser, in the name of “loss of earnings” that resulted from trespass (those copies would have been purchased from me – if it wasn’t for this trespass)

These are very simple concepts – but they are too complicated for you Sione. You don’t have to prove that any further.

Stephan Kinsella January 2, 2007 at 3:09 pm

Sasha: “By the way, Stephan Kinsella is not a doctor.”

Well, I have a Juris Doctor degree, and according to this May 2004 opinion of the Professional Ethics Committee of the Supreme Court of Texas, which considers the question, “May a lawyer use, in connection with his or her name, the titles “Doctor,” “Dr.,” “Doctor of Jurisprudence,” or “J.D.” in social and professional communications?”, the Committee concludes: “the use of the title “Dr.,” “Doctor,” “J.D.” or “Doctor of Jurisprudence” is not, in itself, prohibited as constituting a false or misleading communication. The Committee recognizes that other professions, such as educators, economists and social scientists, traditionally use title “Dr.” in their professional names to denote a level of advanced education and not to imply formal medical training. There is no reason in these circumstances to prohibit lawyers with a Juris Doctor or Doctor of Jurisprudence degree from indicating the advanced level of their education.”

I think Sione is right. From now on, if you are going to respond to or refer to me, please use my title Dr. Kinsella.

Sasha Radeta January 2, 2007 at 3:24 pm

Dr. Kinsella,

When I insisted on calling you Dr. Kinsella one month ago – you said: “I’m not a doctor”…

Geez…

I’ll call you whatever you prefer.

greg January 2, 2007 at 3:35 pm

Sione> What you [Sasha] have done on this thread is assert that you’ve stated premise, showed derivations and concepts, validated and proved them. You have not accomplished that.

I gave him an opportunity to do so in another thread. I realized he had no intentions, or couldn’t even grasp the difficulty he was faced with. So as you say, now he simply asserts that he has done so. His basis (foundation, laughs) has something to do with “personal energy,” owning labor, or something along those lines. It was not good — it was very vague and sketchy.

He doesn’t really appear to understand the descriptive problems associated with “copyrighting/patenting” ideas (and the ensuing juridicial correlation problems), even though Kinsella point blank told him so (and Kinsella is someone who is finely aware of that problem because of what he does for a living). (I also know because of what I do for a living.) Sasha just does not understand the practical problems deeply. I don’t even have substantial disagreement with him on some of the rudimentary “rules” — he just doesn’t realize how severely the burden of proof will be reversed on the limited areas where he isn’t totally whacked. And of course, no free system could ever prohibit independant development — again, the burden under a free system would be so very much reversed from that of the current state enforced system.

SR> Useless and irrelevant comments Greg…

It is your fault. You reduced me to your level. LOL If you would say something worthwhile, maybe I would too, but your history on the topic says you won’t.

SR> You stated that my concept of copyright “grants someone control over the property of other people”… I only said that if person has ownership over some item – that he has the right to rent it, or allow its certain use, while restricting the others.

Doublespeak. The extrication of a class of actions to tort doesn’t really change the matter in practice. You’re just mad that people still umbrella your copyright+tort to a big C Copyright. That is just nitpicking.

Fred Mann January 2, 2007 at 3:39 pm

Wow!! …. still going!!
Sasha, in my example of the coffee shop owner who finds the book, is he allowed to open the book? (I already asked this but you skipped it)
If so, is he only allowed to do so in order to find the original purchaser’s name and/or contact info? If so, how do you justify this without assuming ownership of ideas in general? That is to say, if I am allowed to look at one part of the book, but not another, what is the principle which allows for this distinction?
And on the topic of idea ownership, you write “… ideas can be owned when they are turned into something tangible and physical.” How does this work exactly? Are you saying that the non-physical idea (or ideal or form) is actually “in” the physical object?
Smaller point (skip if you want): In your most recent post, you write “(those copies would have been purchased from me – if it wasn’t for this trespass)”. This is not necessarily true. It may also be the case that the unauthorized seller is just a much better salesman than you — i.e. he might be able to sell 1000 copies, where you might sell none.

Sasha Radeta January 2, 2007 at 4:17 pm

Greg,

I showed that Sione’s comments are totally absurd and meaningless philosophizing about nothing. I don’t have to blab about “rudimentary rules” or “foundationalist philosophy.” I can use a simple logic to show that in a perfectly free-market (where we respect private property rights) you cannot violate someone’s copyright without breach of valid contract or without a tort.

PS
To prevent other unproductive comments about things I already talked about…
I also answered the following:

Q- What if someone changes his mind about his copyright contract?
A- Similar to any other kind of sale, he can try to return that item and to ask for his money back and conditions annulled. If sale was final – than you have no choice but to accept the price you voluntarily paid for the use of someone’s item. Just like you lawfully cannot give yourself a discount when you pay for something on credit, you cannot unilaterally change terms of exchange in this case either (that’s a theft, anyway, because ownership titles changed hands). Without owner’s authorization you also cannot lawfully “upgrade” your allowed use of that product (that would be like upgrading your airline seat without asking).

Q- What if someone steals your unpublished manuscript and reproduces it – but he already sells them to other parties who did not commit any trespass?
A- He will still be responsible the large amount of money that would legally cost him to obtain full ownership of my manuscript (which would give him the right to reproduce it and distribute it). It is up to this trespasser to pay for his actions (plus punitive damages) and third parties are not responsible for anything.

Q- What if some thief sells your manuscript to bona fide purchaser, who than starts publishing your book to general market?
A- Bona fide purchaser will not be treated as a criminal, and he will return the original item or the money he received for it. But as far as his copies go – they are also a product of unauthorized use (trespass) In order to legalize his actions, unintentional trespasser will have to correct the harm he caused in the author’s loss of earnings.

———————————————-

Fred,

In your coffee shop example, there is a fine distinction between looking at the book to find the identity of the owner – and acting in ways that would cause injury to the owner. Even if that person trespasses and reads this book, he can claim that he did it unintentionally, while looking for the owner’s information – and that’s fine. What’s not fine is using that trespass to cause some injury to the author – like loss of earnings.

As far as your question about the thief who might be more capable seller, you are forgetting something:
- From the common law perspective, I don’t even have to tell you that “capability” of thief would be impossible to prove and that victim has a benefit of the doubt.
This thief was selling some items – that legally he only could have obtained from the author – and than he could have shown his capability, like any other legal seller. Just his possession of those items (even without selling them) proves the loss of earnings of this author.

Sasha Radeta January 2, 2007 at 4:47 pm

Also Fred,

In tort, we are concerned about the harm that intentional or unintentional trespass may cause. Common law is no so “exotic” and it is usually not concerned with stuff that’s almost impossible to prove (like whether someone opened your book or not). Common law is a product of human experience – and not of someone’s wild imagination. When we talk about tort, there must be some injury (other than breach of contract). Unintentional trespass, like bona fide purchase of some stolen property or your coffee shop owner who opens someone’s mislaid book, are not doing anything criminal… BUT that does not mean that these unintentional trespassers will be legally allowed to later use that trespass to cause some injury to the rightful owner.

greg January 2, 2007 at 8:20 pm

SR> A- Bona fide purchaser will not be treated as a criminal, and he will return the original item or the money he received for it. But as far as his copies go – they are also a product of unauthorized use (trespass) In order to legalize his actions, unintentional trespasser will have to correct the harm he caused in the author’s loss of earnings.

SR> Unintentional trespass, like bona fide purchase of some stolen property or your coffee shop owner who opens someone’s mislaid book, are not doing anything criminal… BUT that does not mean that these unintentional trespassers will be legally allowed to later use that trespass to cause some injury to the rightful owner.

“Unintentional trespassers”: See, you do treat them like criminals, just ignorant ones. You are doing Doublespeak, or more likely, expressing simple-minded confusion. You need to establish that ideas are property. Get busy! {laughs}

Sasha Radeta January 2, 2007 at 9:06 pm

Calm down you poor ignorant guy.

I am not treating them like criminals… You obviously don’t even know what tort is.

You need to first learn the difference between tort and criminal cases – before you can afford to be so arrogant.

Get busy! {laughs}

Fred Mann January 2, 2007 at 9:47 pm

So it is your position that the opening of a book under these circumstances is trespass?
Also, what of part two of my question? To repeat:

And on the topic of idea ownership, you write “… ideas can be owned when they are turned into something tangible and physical.” How does this work exactly? Are you saying that the non-physical idea (or ideal or form) is actually “in” the physical object?

Sasha Radeta January 2, 2007 at 10:18 pm

Fred,

I told you, opening a book under those circumstances is not a tort and that’s what matters.

As far as your question about ideas goes, I ignored it for your sake. Didn’t you get by now that I only talk about physical property? Even abstract ideas can be written down and than they will become something tangible and ownable. So ideas are not “in” the physical object in some philosophical sense (save that for pseudo philosophers, you have plenty of them on this thread) – ideas can be turned into physical object or a part of it.

Don’t busy yourself with “non-physical ideas,” because we are concerned with property rights of ownable goods here, not philosophy.

Sasha Radeta January 2, 2007 at 10:22 pm

Correction: property rights over ownable goods : )

Cosmin January 3, 2007 at 11:56 am

I like to give everyone the benefit of the doubt, but I finally agree with some people who told me from the beginning that Sasha is quite dense, to say the least.
I don’t understand how he can still believe I advocate breaking contracts.
What I do advocate is identifying invalid clauses in contracts and not abiding by them. Not because we derive pleasure from reneging on contracts, but because invalid clauses are non-binding by definition.
What is an invalid clause? My position is that there exists a certain type of transaction that is final and accepts no condition to be placed on the use of the product involved in the exchange. It is characterized by full transfer of ownership. I call this transaction a sale. Brian seemed to agree, except he sees that the word sale is commonly used to refer to transactions where ownership is not fully transfered, and thinks we should let that situation perdure. My question is: why? Why do I have to qualify my sale with terms like “as-is sale”? Why don’t the others qualify their transaction with “restricted sale”, or “partial sale”, or “rent”? Just because there’s more of them? Just because something is common, doesn’t mean it’s right. Even if most people were color-blind, those who weren’t would still be right when pointing out mismatched socks.
Also, who’s to say that in a free-market situation, the other type of transaction (where ownership is fully transfered) wouldn’t be the more common one? I believe this to be the case and here’s why:
In a system where no government steals our money to pay for the institutions that enforce IP rights and protect from violators of these, sellers would have to include the cost of such into the price of their product. Other sellers would gladly abandon the right to control the use of their product beyond the sale and would be thus able to present their product at a more attractive price. This type of sale might become the more common one.
Wouldn’t it then be obvious that when someone presents himself as a seller of this type, he would be a fraud if he were to be a mere renter?
What that means is that, obviously, he can impose any condition he wants in his contract. But in doing so, he forfeits the right to call this contract a sale contract. Only someone as daft as Sasha can endorse such a unilateral modification of the terms of a sale contract.

Sasha Radeta January 3, 2007 at 4:55 pm

Cosmin,

You are so ridiculous. If both parties voluntarily accept a free market contract (terms of exchange) only someone as daft and dense as you would call this “unilateral modification”. Hey Einstein, I don’t accept any one-sided modifications of contract after both parties terms in which they exchange property titles.

And now you have problem with rent and conditions that some owner can ask from their property’s users (who are free to decline or accept these terms). You ask WHY. Well, because people are free to do with their property whatever they want (as long as they don’t violate someone else’s property with that) and they can exchange their property, goods and services, however they see proper.

Anyone can read what you wrote. You advocate breaking contracts by declaring (unilaterally) that some conditions that were perfectly good for you at the time of purchase (you accepted them) are no longer “valid” – but your control over their product is perfectly “valid” for you. That is called FRAUD.

You can’t rent a car, and than decide you own it. You can’t promise to pay one price, get the product, and than run-away with paying only one part. You even stated that you would accept some terms of exchange just to “to avoid wasting time arguing…” and than feel free that you can change them however you see fit. Only someone completely out of their mind would even say something like that.

Sasha Radeta January 3, 2007 at 10:49 pm

Correction: I don’t accept any one-sided modifications of contract after both parties voluntarily accept terms in which they exchange property titles.

And sorry about lapses like than=then… I write too fast.

——

Anyway Cosmin, don’t you think it’s time to stop with those crazy insinuations about my positions? Just admit that you cannot invalidate some market exchange contract, by changing your mind about the price you’re going to pay, but still insisting on taking someone else’s good or service. State any definition of enforceable contracts and I will justify the copyright as such. It would perfectly hold in common law, so just give it up.

Cosmin January 3, 2007 at 11:04 pm

I see reading is not one of your skills.
“And now you have problem with rent and conditions that some owner can ask from their property’s users”
What I said: “obviously, he can impose any condition he wants in his contract.”

“You advocate breaking contracts by declaring (unilaterally) that some conditions that were perfectly good for you at the time of purchase”
What I said: “What I do advocate is identifying invalid clauses in contracts”

“are no longer “valid”"
What I said: “there exists a certain type of transaction that is final and accepts no condition to be placed on the use of the product involved in the exchange.”
The condition was never valid, since it was written on a SALE contract.

Answer me this simple question:
Why is it so hard for you to put the Sale contract back in the drawer and pull out a Rental contract if you want to put conditions?

Honestly, do even know how to read? Would you have written your last message if I hadn’t written mine? I would think not. Hence, you wrote in reply to it. Why is it then that you don’t address anything in it, but rather resurrect long-spent arguments that have since been explained and clarified? You’re turning in circles, man! I would stop wasting my time with you, but it’s just too damn funny. It’s like a trainwreck that one can not avoid staring at.

Sasha Radeta January 3, 2007 at 11:32 pm

Cosmin,

You are even more ignorant than I thought. You said:

—-
“there exists a certain type of transaction that is final and accepts no condition to be placed on the use of the product involved in the exchange.”
—-

You poor soul, there can be a final transaction on rent as well (some people get stuck with their rent contracts)… but that’s not even important…

What you probably meant to say is following:
- there are transactions in which ownership title over some seller’s good is transferred to the buyer. Since this buyer is now the legal owner over that good, that means that he is now in “full control of the services that can be derived from a good” (L. v. Mises, H.A.).
OF COURSE THERE ARE TRANSACTIONS LIKE THAT! Didn’t we talk about it when we mentioned co-ownership or full ownership, in which a publisher (unlike a common user) has the full control over his good.

UNFORTUNATELY FOR YOU, copyright does not refer to these kinds of transactions. The ownership title over copyrighted item is kept by the author or publisher in this case. The purchaser only buys the service that can be derived from the personal use of that product. It’s like any rent. The owner has a right to ask for the price for the specific use of his item, and he has the ownership right to restrict some unwanted uses.

IS THAT CLEAR NOW? Well, probably not to you.

Sasha Radeta January 3, 2007 at 11:41 pm

Also, the problem is that you don’t read your own postings.

By “invalid clauses in contracts”

You actually mean this (these are your words): “Person B dismissively promises to abide by M in order to avoid wasting time arguing…”

That is nothing but a fraud and theft. SALE includes exchanges of both goods and services – and you cannot unilaterally dismiss someone’s price (asked goods and services from you), but keep his good and treat it as your property.

Anyway, that still has nothing to do with copyright (only with your ignorance). How would you apply your insane notion of “invalid clauses” copyright?
- Someone says that he does not give up his property title over some product and that he will only allow you to use that product in certain ways for specified compensation (in money and damages in cases of contract violation)… but you decide to assume you are the owner of that good and that you get to pay only a part of the price that you find “reasonable.” I mean, how else would you apply your nonsensical “final sale” ramblings to copyright??? I’m just asking here, don’t attack me… Just give me an example!

Show me how you would find “invalid” clause in any copyright product! (This is really refreshing after anarcho-communists failed to justify tort as a mean to bring down the copyright).

Cosmin January 4, 2007 at 12:04 am

“You actually mean this (these are your words)…”
I thought I told you to refer to the newest posting.

“- there are transactions in which ownership title over some seller’s good is transferred to the buyer. Since this buyer is now the legal owner over that good, that means that he is now in “full control of the services that can be derived from a good”". That’s what is called a sale.

“UNFORTUNATELY FOR YOU, copyright does not refer to these kinds of transactions.”
FINALLY! In other words, when you sell something, you can’t impose copyright restrictions. That’s what I’ve been trying to tell you since last year!

“Show me how you would find “invalid” clause in any copyright product!” Easy. If the shopkeeper says the product is for sale, what that automatically means is that you acquire “full control of the services that can be derived from a good”. Hence, no copyright can exist on said product. For a copyright to exist, the shopkeeper would simply have to say the product is for rent. Is that so hard?

Sasha Radeta January 4, 2007 at 1:39 am

Oh Cosmin- you “genius”!

I will refer to any of your postings – not just new ones (until you clearly reject the old ones and say that they were incorrect)…

By the way, there is no need for that “FINALLY” charade – I kept saying the same things, over and over again. I’m not the one who asks people to refer only to my newest posting.

TO GET TO THE POINT:
“Sale” does not have to imply exchanges of the ownership title over some particular good. You can sell your services, like allowing someone to use your book in contractually specified manner. If your written copyright disclaimer states that you are NOT purchasing the ownership title over that product and that you have specific terms of use – you will have to respect those. Is that so hard?

Sasha Radeta January 4, 2007 at 1:54 am

And to preempt something I can see clearly coming:

No one cares what “sale” means to you in a particular context, if there are expressed terms that specify what is exactly sold there.

After all those insane attempts to justify contract violations with “third…, fourth…, fifth…” parties – as well as Cosmin’s “crossed fingers” – it has all now come down to a subjective interpretation of word “sale” in communication with sellers – meaning that the validity of copyright contract is no longer in question.

Cosmin January 4, 2007 at 11:36 am

I thought the point of a debate is to advance the conversation. My position has not changed from the first post to the latest, but the wording has. Perhaps it is more concise and presents the situation in a more clear and understandable way. At first, there was some confusion on my part because I hadn’t realized you were talking about a different kind of transaction (partial) when you used the word sale.
What sort of logic impels you to resurrect the older posts, whose time has passed?
Then again, you are not debating to advance comprehension of anything. You never answer questions. You never address points made. You just turn around in circles, throwing tantrums when someone doesn’t agree with you.

This may be pointless, but let me explain my position:
1. Sale is the transaction where ownership is transfered.
2. Copyright has no place in a transaction where ownership is transfered (sale).
3. Copyright is perfectly valid in any rental transaction.
4. Proponents of copyrights are free to advertise that they have products for rent. They can’t trick (fraud) costumers by saying their products are for sale.
5. Then, let the market decide which type of transaction will perdure (or if both coexist).
What’s wrong with that?

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