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Source link: http://archive.mises.org/6398/beemer-must-be-next-bmw-trademarks-and-the-letter-m/

Beemer must be next… (BMW, Trademarks, and the letter “M”)

March 20, 2007 by

Thanks, Trade*ark law. Now, thanks to a recent court decision, auto *anufacturer B*W now owns the rights to the letter * (the one after L and before N–I’* afraid to use it since B*W now owns it). Even sillier than Apple’s claim to own “podcast” or even “pod”. Ah, *e. Thanks to To* Bernhardt)

{ 132 comments }

Sasha Radeta March 23, 2007 at 2:17 am

Correction there (I made mistake in typing):

“I always claimed: that a person can breach his contract — but not void it unilaterally.”

And if contract specifies damages for that breach – it still legally holds

—-

Fred,

To “use” means to put into “service.” And those services should be fully controled by the owner. When someone else derives services from your property (without your permission) that’s a trespass

Alan Dunn March 23, 2007 at 6:17 am

Sasha,

I’m assuming that the letter M being generic is not relevant to the case in the article ?

Is it because the M was used in a similar manner by infinit to how BMW used it?

I think Apple / Mac and the Beatles had some arrangement that Apple could use the Beatles record logo provided they didnt “use it” for musical products.

Given the existence of the Ipod and the BMW case unfolding as it did, it looks like it’s “game on” between the Beatles and Apple.

I have no legal background so I don’t assume I am an authority on such matters.
cheers

Dan Coleman March 23, 2007 at 7:03 am

I can’t help but notice that Sasha evaded Cosmin’s questions completely, focusing instead on personal attacks. Interesting.

Sasha, can you say what you think about the following?:

[Do] purchase contracts have clauses that are perpetual, ongoing after the use of the product involved in the exchange is expired?

“If one person (with full mental capacity) signs a contract to work for a company, can he break that contract or not?

Similarly, if one person (with full mental capacity signs a contract to work for a company, can the company unilaterally break the contract?” ([Cosmin argues that] the compensation is calculated by real damages incurred, not speculated future earnings).

Specifically, the person let go from his contract by the company must make a good faith effort to find similar employment, and the company will pay the difference of salary between their broken contract and the guy’s new contract. Or, if the person breaks his contract with the company, the damages he is liable for are the costs in time and effort that the company undertakes to find his replacement.

In our current predicament, then, a person breaking a rent contract halfway through its duration, for whatever reason, is liable for the loss of income suffered by the company because of his breach. Meaning, the other half of the contract, or untill the company rents the device to someone else.

rtr March 23, 2007 at 9:24 am

Sasha Radeta wrote:

As Rothbard stated:

“…validly enforceable contracts only exist where title to property has already been transferred, and therefore where the failure to abide by the contract means that the other party’s property is retained by the delinquent party, without the consent of the former (implicit theft). Hence, this proper libertarian theory of enforceable contracts has been termed the “title-transfer” theory of contracts”

————————————

How many times can you ignore that words, that ideas, are not physical, are not material, are not property, capable of being exclusively owned? There is *never* any title whatsoever to ideas, to words, to sounds, to images. There can only be title to actually existing physical things. In the case of a book, that is the physical construction matter the book is made of, such as paper. There is no title whatsoever to any specific instance of any word, or any instances of specific patterns of words.

————————————————–

Sasha Radeta:
“Enforceable contracts ARE exchanges of real property transfers – not just mere promises. It is illegal to promise someone $100 to moan your lawn — but after the job is completed to say that you don’t own anything, because you change your mind and you don’t need that service.”

————————————————-

An exchange of real property is called TRADE, not contract.

If you promise to pay someone to mow your lawn, they mow your lawn, you refuse to pay, you are liable only for the market rate value of the labor of mowing that lawn, nothing more. If there’s a dispute about the use of a book, the dispute is about the market value of the physical paper pages which construct that one single construction of physical paper pages. Nothing more. You’re a fanatic wannabe despot claiming limitless damages and confiscation of physical material property beyond the actual single book pages in dispute. Slavery and servitude is not a valid contract; it’s wholly dependent upon contuing voluntary willingness of the enslaved/servile which can be abandoned at any time with no material damages.

———————————————-

Sasha Radeta:
“Just like you (legally) can’t obtain the use someone’s good in exchange for some damages if you replicate that item – but then to say you change your mind once you use it – and say you don’t anything.”

———————————————–

Sasha Radeta:
“Everything else you wrote is too incoherent and I can’t punish myself by reading it.”

————————————————-

Not only is that the talk of a coward who’s arguments have been wholly defeated, it applies perfectly to your previous sentence.

Sasha Radeta March 23, 2007 at 11:04 am

Dan,

Don’t be ridiculous. After Cosmin ignorantly assumed that one party in contract can unilaterally void it, I explained the reality quite clearly (and that’s your answer):

One party can BREACH a contract (like with actors, athletes) —
– but if contract states that side who breaks the contract must pay some damages in the event he breaches his contract — he must pay these damages. Even Cosmin understood this one.

If a contract specifies right of one party to break it without damages — neither side would pay any.

======

rtr,

Don’t waste our space on this thread with nonsensical statements. I never claimed that ideas can be owned. In copyright contracts there must be transfer of some good or service — and in the event of contractual breach, there would be a theft.

Contracts are not trade — they are terms of exchange. Mere promises can be freely violated at will by one side — but enforceable contracts cannot, because this implies theft.

For example, Dan and Cosmin obviously don’t understand that you can’t use someone’s labor — and then change your mind about the conditions you voluntarily accepted in contract — you will still owe the amount that was specified in contract (contract still holds, in spite of your breach).

What poor rtr is suggesting is that whenever you are dissatisfied with price you have to pay — you just break the contract and court will award you more “fair” market price :)) INSANE!

Individuals pay (and they should pay) different prices. There is no reason why courts would become arbiters of people’s prices — and it would be a complete contradiction if they would use average of (different) individual prices in reaching such socialist, unjust, and completely insane decision. I guess such court revisions of voluntary, free-market decisions are “freedom” that anti-copyright crowd advocates. As you already know, each individual has his own price of goods and services. Fair price is only the one upon which both party voluntarily agreed. It is not job of the courts to impose an average on sides in exchange.

Sasha Radeta March 23, 2007 at 11:27 am

“Not only is that the talk of a coward who’s arguments have been wholly defeated,”

Ha! There’s another comedian. Defeated by what? Your ignorance of economics and basic contract law? No way….

By the way, let me clarify the sentence that got you confused:

It would be illegal for you to obtain the use someone’s good in exchange for one price — and then to decide that you are not going to pay this price. When you agree to pay damages in case of contractual breach — that is the price you pay for the use of someone’s good (book, DVD). You cannot unilaterally “void” this contract — and you will still be responsible for any damages this contract prescribes (like for unauthorized replication, broadcast, or other commercial uses).

rtr March 23, 2007 at 2:09 pm

Sasha Radeta:

“I never claimed that ideas can be owned.”

Then why are you quoting Rothbard talking about *property*? There’s no intellectual “property”. Case closed.

Sasha Radeta:

“It would be illegal for you to obtain the use someone’s good in exchange for one price — and then to decide that you are not going to pay this price.”

The only good you are talking about is paper pages. Doesn’t matter what is or what is not scribbled upon the pages. You are in absurdity if you claim nobody else can construct paper pages with scribble upon them, what a true patent or copyright of any book would really mean. You’ve already agreed what’s written, ideas, are not capable or being exclusively owned and are not property.

All your examples of contract are invalid because slavery and servitude is not enforceable. We covered this the last time around. Compelling material recompence is no different than compelling material action. They are *both* invalid contract. It’s as absurd as making a contract with someone who doesn’t know better for them to pay you for every breath of air they breath. There’s no material damage done to you the moment they decide to no longer pay you for breathing air which is freely available.

Sasha Radeta:

“When you agree to pay damages in case of contractual breach — that is the price you pay for the use of someone’s good (book, DVD). You cannot unilaterally “void” this contract — and you will still be responsible for any damages this contract prescribes (like for unauthorized replication, broadcast, or other commercial uses).”

There is no valid contract in the first place. Of course you can unilaterally void paying somebody for something they don’t own. You cannot force someone to pay for something you don’t own, which is not your property. All you ever own are physical material things, such as paper with splotches of ink patterns. In addition, all your unilaterally voidable contract applies only to one single specific instance of material paper pages with splotches of ink which was involved in the transaction. If those pages are in a dispute, they can easily be returned to you in perfect original condition.

Other pages with other splotches do not belong to you, never did belong to you, never were traded to you in voluntary exchange, even if those other pages not owned by you exactly resemble the pattern of ink splotches in your original. You don’t own the pattern, you don’t own the ideas, you don’t own the words — AS YOU’VE ALREADY AGREED.

Thus, you have NO AUTHORITY, NO TITLE, with which to make a contractual use regarding words, ideas, images, sounds, etc. You cannot regulate that which you do not own. Your original pages are just your original pages. They don’t spontaneously duplicate or reproduce themselves into other tangible material property. Any other objects which resemble your original, in part or in whole, exactly or less than exactly, were created from material property not ever a part of your original material property.

Your original pages cannot be damaged even by the “renter” (even though it’s clear the new party in possession is an owner) burning them. You have no valid use contract. We’ve been over this before. Has any library or individual ever been sued for burning a book, for having a book burn? No. That clearly shows the original pages with splotches of ink have been traded in whole. And you have no remaining contract over any manner whatsoever in how those pages are used. Your attempt to prohibit action over property you don’t own is an act of violence. You have no “valid” contract. You have no contract whatsoever. You cannot compel silence without violating freedom.

Sione Vatu March 23, 2007 at 2:53 pm

Sasha

You’re well informed.

Anyway, I recall how similar the Alfa 164 and the Peugeot 605 of the 1990s looked. It turns out they were designed by the same studio (‘Farina). Both were good looking cars. I don’t think that either Peugeot or Alfa realised how similar the designs they purchased from ‘Farina actually would turn out to be.

Take a look from the profile view and you’ll see what I mean. The two cars external appearance was differentiated only by some fine details (such as bonnet crease lines and grill). Aside from that they could have come out of the same plant! It did not seem to cause confusion for either maker or stir up trouble between any of the parties.

After considering that, I thought that a return to abandoned design themes should not be objectionable and could be achieved relatively easily. Note the preponderance of small specialist car manufacturing firms (often known as “kit car” manufacturers) doing exactly that. Several of these have been producing direct copies of exotic automobiles for years. Several have been in dire legal trouble for producing designs that are similar looking to those of the large scale manufacturers. For example, I understand Ferrari goes after anyone who uses a shape considered too close, even for designs they ceased manufactured way back in the ’70s. Also they have been successful closing businesses down for doing this, even when they themselves used the designs of others or elements of the designs of others in their original vehicles… I supposed we could argue the legitimacy of that.

Anyway, what I was thinking was a BMW style of vehicle similar to their early (handsome) designs. The Falcon (presently built in Australia) has its hard points in approximately the correct position for a reskin. A “kit” outfit could make suitable panels quickly on soft tooling. The costs are about right to make the proposition economic.

Where the trouble appears is with BMW choosing the Ferrari route and taking action. I’d thought an altered grill should cover it, but in today’s situation it would be hard to know for sure. Given the Peugeot/Alfa example above one would think that some subtle tweaks would cover it. The worry is how much needs to be altered before you attract unwanted attentions. Is it enough to lose the attractiveness of the original design theme? Could be.

Interesting question: Should BMW, having abandoned the original style be entitled to monopolise it by way of litigation, even though they no longer employ it?

Sione

Sasha Radeta March 23, 2007 at 3:01 pm

Rtr,

I am quoting “Rothbard talking about property” — because he was a defender of contractual copyright and he also followed Mises’s definition of ownership. You havent’t even bothered to read Rothbard, yet, without any shame you mention his name in anti-copyright context.

If you own something — you have right to control services that can be derived from a good. That’s why owners can sign contracts in which they rent their hotel rooms, rent their cars… an yes — allow only limited use of their goods (copyright). You cannot use someone’s service — and then when you have to pay for that service (amount based on contract) to declare that contract void — asking for court to determine your “market price”.

I didn’t bother to read most of what you wrote, but since it must be based on nonsense that you can’t contractually establish terms of use of your own property — I know it’s a complete nonsense.

Regards.

rtr March 23, 2007 at 3:43 pm

Sasha Radeta:

“If you own something — you have right to control services that can be derived from a good.”

Unfortunately for you, you’ve already agreed you can’t own words or ideas. Thus, you cannot regulate its use contractually.

—————————————

Sasha Radeta:

“That’s why owners can sign contracts in which they rent their hotel rooms, rent their cars… an yes — allow only limited use of their goods (copyright).”

The only thing book publishers own is paper with splotches of ink. They don’t own any words, any ideas, any content which may or may not reside in the physical material property. YOU’VE ALREADY AGREED THAT CAN’T BE PROPERTY. You’ve lost.

The only thing you can regulate, the only thing you can authorize, the only thing you can transfer title to, the only thing you can contract the use of, is of a physical material object. In the case of a book, that would be the existence of any other books with pages and splotches of ink, no matter the content. Got that stupid? See how absurd that would be?

The ideas/words/sounds content is irrelevent, is not ownable, is not subject to any valid contract, is not subject to any “use” authority. Got that stupid?

Let the thread know if you were able to read that far this time. And then reread to see how your arguments were wholly destroyed — again.

Fred Mann March 23, 2007 at 8:49 pm

“… all these people can be observed as unintentional trespassers …”
” To “use” means to put into “service.” And those services should be fully controled by the owner. When someone else derives services from your property (without your permission) that’s a trespass.”

Here is where you make your mistake. I still have many issues with your terminology, but even if we accept all of your terms, these third parties are still not trespassers. Mr. Smith **IS** in full control of the services derived from the DVD. He is the one allowing the broadcast/transmission. He is in full control of the broadcast. The third party viewers are merely observers using their own equipment on their own property. They are not using the DVD or causing the broadcast to occur. They have already been granted access to the service via the publicly-available stream. In making the DVD stream publicly available, Mr.Smith AUTHORIZED the use of that service.
If Mr. Smith was not supposed to allow others to view the transmission, then he is in breach of contract. He is the only party that could ever conceivably be held responsible for any damages that may result.
Of course, the very idea that one could be accused of trespass when merely observing something from their own private property without making any attempt at invasion (i.e. hacking) is ridiculous on the face of it.

Sasha Radeta March 23, 2007 at 9:11 pm

Rtr,

If I own my book (paper and ink) – I can control the way someone uses it. I can contractually sell only limited uses of my book, while restricting other ones. That’s it.

—–

Fred,

I just restated Rothbard’s position. Observing DVD’s content is its use (service derived). The fact that you observing it via your computer is really not the issue, since it’s the same as if you did it directly with your eyes. Trespass does not have to be a direct invasion of property — but it is an unauthorized use. Computer hacking should be a crime, if someone derives services from your property (computer) without authorization. Mises’s definition of ownership also has some interesting privacy implications, but I don’t want to get us off-topic.

I respect your position, but, as you noted, Mr. Smith is committing a contractual breach and he would be responsible for those expensive broadcasting rights. That should be good enough for now, as far our progress in discussion goes. You are now approaching Rothbardian camp :)

—–

I don’t have much time, but I will try to respond to Sione:

“Interesting question: Should BMW, having abandoned the original style be entitled to monopolise it by way of litigation, even though they no longer employ it?”

Well, some will argue that because of past association with, this would create confusion with customers… The fact is that after some period that argument will no longer hold and that old design can be used without any confusion and legal controversy.

Ferrari is aggressive precisely because smaller number of units account for their revenue and their 70s styles are still widely recognizable and associated with their name. They would say that Peugeot/Alfa voluntarily chose to be similar, but they don’t want to be…

Anyway… With some cosmetic changes, you should be able to make your version of old BMW’s design. And after some time, you should be able to remake their abandoned retro designs.

Unfortunately, it’s not me who’ll decide the faith of such endeavor.

Sasha Radeta March 24, 2007 at 12:06 am

Electrical signals are indeed one way to control someone else’s property; it is possible to do so from a distance. The question is whether this control is consented to or not. Some uses are; others are not.

Posted by: Stephan Kinsella at October 12, 2005 1:49 PM

When it comes to trespass, the word “use” rather than “control” can be used to describe it. Actually, since Dr. Kinsella correctly considers junk mail as a form of trespass (which doesn‘t take the control of your computer, but it in fact uses it without owner‘s permission), I think that essentially there is no difference in out positions (how in the world did we get here…. must be my wonderful temper and friendly personality, as well as Dr. Kinsella’s openness to criticism and new ideas :-)

Anyway, this may be of help to you Fred when it comes to trespass: http://blog.mises.org/archives/004201.asp

And when we have a trespass that causes financial injuries — that’s tort.

Other side of copyright coin are contracts — and here we reached almost 100% consensus. Well actually, poor souls like Cosmin and RTR are still resisting, because they are confusing different kinds of contracts (implied-in-fact; limited duration; etc.), without realizing what kind of enforceable contracts we’re talking about… but other than that, this was a more pleasant thread :-)

Sione Vatu March 25, 2007 at 1:33 pm

Sasha

Yes. In today’s situation it’s a difficult call. Do you go ahead or not? It’s a make or break decision. You are invsting in tooling and a business that could be dragged into court at any time. There’s no winning in court but there is considerable expense.

Lamborghini take the opposite approach to Ferrari. They welcome the copies. Their approach has been to consider immitation good PR for their business. Interesting how the two companies have taken such divergent views. When I last visited the factory the attitude was that “we make the best Lamborghinis”, the others follow. They did not have a high regard for Ferrari either! Ferraris were stylish and reasonably quick but they were considered “soft.” I think I know what they mean.

BTW I have not been back there since the VAG take over. I understand the Germans are intending to re-engineer the cars now. That may well mean the cars get higher top speeds but get softer, larger and heavier, less extreme. In other words, more like Ferraris. What a shame that would be.

Returning to the Falcon reskin and “kit cars.” I see this area as one where the present IP legal situation is dangerous and destructive, for it defeats innovative new companies seeking to establish themselves in market niches where demands does exist. Presently the need is not being met. It may not be allowed to be met.

What do you think?

Sione

Sasha Radeta March 25, 2007 at 2:54 pm

Like I said:

Even many libertarians don’t understand the basic purpose and meaning of trademarks and copyright — so what can I expect from statist courts. Of course that your modification of their old and abandoned design would not cause either customers’ confusion or any loss to BMW.

I don’t agree with the court’s decision against Infinity for example… but it only illustrates how far we are from common law, free-market reasoning.

The only way now is to present your car-kit idea to the manufacturer like BMW, tell them your production will be small (low impact) and simply swallow your pride and ask them for permission to materialize your design.

I know it makes no sense, but not too many things do nowadays. That’s why I am anarcho-capitalist and against statist IP laws :)

Cosmin March 26, 2007 at 2:42 am

Sasha, you said:
“If I own my book (paper and ink) – I can control the way someone uses it. I can contractually sell only limited uses of my book, while restricting other ones.”

This is where the whole idiocy starts. You can not sell limited uses in this way. You can not sell a book for the limited use of being a paperweight and then call the buyer a trespasser when he reads the book. You can not sell a book for the limited use of reading and sue the buyer when he uses it to stomp out a fire.
Basically, what you’re arguing is that one can own someone else’s future actions through contract. That is slavery. (It doesn’t matter if it’s all future actions of that person, or just a small and insignificant one, it’s still slavery.) Any slavery clause in any contract can be unilaterally voided at any time (even without needing to break the contract, now that i think about it in more detail).

Truth is, Sasha’s position isn’t pro-copyrights. Rights have an universal quality. Sasha isn’t arguing that all ideas are uncopyable by their nature. She’s merely arguing that the originator can decide whether his works are copyable, and that he has contracts at his disposal to impose his will. Hence, Sasha is actually arguing for the sanctity of contracts.
Let’s look at that closer. Let’s say I want to buy a gun and go hunting. The arms dealer sells me a gun only if I sign a contract saying I will not use it to hunt deer. (If I wanted to buy deer-hunting uses of the gun, it would supposedly cost me more, according to Sasha.) Well, I sign the contract, since I’m going duck-hunting anyway. That, and empty beer can-hunting. [Allow me to interject here a variable scenario (lost in woods, new plan by hunting mates, fortunate deer encounter) that takes me on a deer-hunting expedition.] If succesfull in shooting a deer with my gun, am I liable to be sued by the arms dealer? After all, it’s in the contract!
My position is that even if I’ve “breached” that clause in the contract, I don’t owe any compensation to the gunshop owner, since his clause was one that would control my actions contrary to my free will, and as such is tantamount to slavery. Such a clause is voided whenever I recognize it for what it is and refrain from granting it any power over me.

Sasha, continue believing that you can own someone’s future actions through contract, but don’t delude yourself into thinking you’re advancing the cause of liberty.

Sasha Radeta March 26, 2007 at 3:28 am

Cosmin,

Of course that you can sell specific uses of your property, just like you can rent it under specified conditions — and I never said that the book-use purchaser can be called a trespasser as long as he uses that book in ways that he paid for (specified in contract). This has nothing to do with slavery. You don’t have I right to use my property in any way you want to — only I have that right.

If you pay for personal use of my apartment under the condition that your boyfriends are not going to spend nights there (imagine that the owner is gay basher who wants to make your stay unpleasant) – you will have to respect that contract as long as you live there — or pay damages in cases of violations.

Your deer-hunting example only show your thinking disability (guns do have more expensive use — and that use is replication, not the deer hunting… you could easily find examples insurance industry, but that’s far beyond you), as well as total ignorance of contract law. Nobody is master of your body and nobody is forcing you to do anything. But if you decide to assume more expensive use of my property (and you even contractually acknowledge the price of such use in form of damages) — you will have to pay it. It would be fraudulent to use someone’s service at contractually agreed price — and then to refuse to pay that price. It’s that simple.

Damages expressed in copyrights cannot be interpreted as “owning someone’s actions,” as someone seriously challenged may assume. It is charging the valid price for used services. I hope this makes things little bit clearer for you (although I doubt it).

Regards.

PS
You can’t seriously talk about anyone’s “idiocy.” Not after your insane statements about pure competition and void contracts. You are just not medically fit to give that call.

Sasha Radeta March 26, 2007 at 3:59 am

When owners of rented apartments prohibit drugs and prostitution on their property, is that equivalent of “owning someone’s actions?” Absolutely not. That’s just restricting certain uses of your property (negative rather than positive rights).

And to take things outside of contractual issues: is putting a no-trespassing sign owning someone’s future (trespassing) actions? Absolutely not. You don’t have any free will and frredom of unrestricted action when it comes to use of my property.

Cosmin said:

My position is that even if I’ve “breached” that clause in the contract, I don’t owe any compensation…, since his clause was one that would control my actions contrary to my free will, and as such is tantamount to slavery.

That’s communist “reasoning.” You think that contract you signed is not yours — but only “his” — and that you have some inherent rights to use other people’s property in any way you want to. You are so fortunate for the fact that you are incapable of understanding how much you humiliated yourself on this thread.

It’s like trying to knock-down a punching bag. Cosmin, you’re no fun.

rtr March 26, 2007 at 10:51 am

You sure are slow Sasha Radeta:

“If I own my book (paper and ink) – I can control the way someone uses it. I can contractually sell only limited uses of my book, while restricting other ones. That’s it.”

Your book is physical paper with splotches of ink. It’s impossible for your book to be copied because your book is always just a specific piece of physical pages with splotches of ink. Those specific physical pieces of paper with those specific physical splotches of ink can only not be “copied” if you were to outlaw every other existence of every other physical book with physical splotches of ink, no matter the immaterial non-ownable, non-authorizable meaningful content contained in patterns of words. That would mean only one book by one author could be in existence, assuming your ignorant notions of copyright were correct, which they are not.

Here it is copy + pasted for you.

Unfortunately for you, you’ve already agreed you can’t own words or ideas. Thus, you cannot regulate its use contractually.

The only thing book publishers own is paper with splotches of ink. They don’t own any words, any ideas, any content which may or may not reside in the physical material property. YOU’VE ALREADY AGREED THAT CAN’T BE PROPERTY. You’ve lost.

The only thing you can regulate, the only thing you can authorize, the only thing you can transfer title to, the only thing you can contract the use of, is of a physical material object. In the case of a book, that would be the existence of any other books with pages and splotches of ink, no matter the content. Got that stupid? See how absurd that would be?

The ideas/words/sounds content is irrelevent, is not ownable, is not subject to any valid contract, is not subject to any “use” authority. Got that stupid?

Did you get it now, this time?

Cosmin March 26, 2007 at 3:01 pm

Sasha, you still can’t read, can you?
“I never said that the book-use purchaser can be called a trespasser as long as he uses that book in ways that he paid for (specified in contract).”
In my example, the contract specified that he could only use the book as a paperweight. When he reads the book, he uses it in ways that he didn’t pay for. According to you, that makes him a trespasser.

“guns do have more expensive use — and that use is replication, not the deer hunting…”
No, according to you in a previous statement, that use can be anything that the original seller wishes. To quote you:
“If I own my book (paper and ink) – I can control the way someone uses it. I can contractually sell only limited uses of my book, while restricting other ones.”
So in my example, the gunshop owner restricts certain uses of the gun, such as deer-hunting, as is his prerogative, according to your doctrine. Why then did you evade instead of addressing the argument?
Or, are you now arguing that deer-hunting is NOT a type of use that the original seller can restrict? (As opposed to replication, which he can.) Are you the arbiter of what uses are restrictable and which other uses are not?
Furthermore, I don’t see how replication of an object can be considered as an use of that object, unless it has self-replicating capabilities.
In order to replicate an object, you have to have materials. You find some that don’t belong to the seller of your device. Those aren’t under the control of the device’s originator.
Then, you have to use your labor. That isn’t under the control of the device’s originator, outside of a slavery situation.
Then, you have to have an idea of the device youre replicating. This idea is under the control of the device’s originator, but it is not his property. When you buy his device you make use of it. Durning the course of your use of the device, the idea of how the device functions arises in your brain. The device’s originator has no control over the idea that you find in your brain.
Sasha’s brilliant argument is that the original seller, having anticipated that you’d acquire an idea of the mechanism of his device through its use, has imposed on you that you alienate your right to use the idea in your brain in exchange for the opportunity to acquire the idea in your brain in the first place.
The problem here is that noone can give away the ability to acquire ideas, no more than they can give away the ability to understand speech. So if they can’t give it away, why would they give up the right to use said idea in exchange for retaining the right to acquire it? This is why I don’t see how these types of transaction would survive in a free market.
Also, I don’t see how someone can give up the right to use an idea from his brain, and not have that situation be called slavery. This is why I don’t see how this type of clause in a transaction would be enforceable, if it even existed.
Here, Sasha decide to muddle the issue, with inflammatory rhetoric:
“That’s communist “reasoning.” You think that contract you signed is not yours — but only “his” — and that you have some inherent rights to use other people’s property in any way you want to.”
I’m using other people’s property? I told you what I’m using: bought materials, my own labor, the idea of the device. That’s it. Which one of these is “other people’s property”? Is it the idea of the device? Silly me, I thought ideas couldn’t be property. So where is this “other people’s property” that I’m using?

Sasha Radeta March 26, 2007 at 5:03 pm

RTR,

I’m not slow. You’re just not very fond of using your grey cerebral matter. If I own physical book, that implies that i can legally control its use. Anyone who derives any service without my permission is trespassing, based on definition of ownership. In other words, I can exclude anyone from reading it, scanning it, or enjoying whatever service from it…

I can prove that someone used my book without permission based on unauthorized copies. It would be rather easy for Hans Hermann Hoppe to prove whether someone replicated his work: word-for-word.

If you can prove to court that you made an identical book, without unauthorized use of my book — more power to you. Almost everything you wrote seems like a psycho-babble, so I’m not going to torture myself by reading it.

I mean, look at this idiocy:

“the case of a book, that would be the existence of any other books with pages and splotches of ink, no matter the content. Got that stupid? See how absurd that would be?”
You even dared to call someone stupid, which sounds like a cruel joke at your expense! What “splotches of ink” are you talking about, you poor soul? I am the owner of my book with its own specific patterns of ink. If you use it and replicate it without permission, your trespass will be easy to prove in court.

—–

Cosmin,

You poor guy. You suffered so much on this thread. That’s why I’ll be gentle now.

I certainly addressed you deer-hunter example (although I commented its silliness as an illustration of your modest capabilities).

Anyway — if we contractually agree that a certain use of my item costs more — like using a rented car in street races… If you use my property in such way you will owe me the payment of that price. It’s that simple.

As far as replication goes, of course that you need something more than just your material…. You need a template (original work that you want to copy)…. if you obtain that object under the condition that you will pay damages for any template (replication) use — that’s the price you agreed to pay for such use. And stop referring to slavery, you are insulting African-Americans. it is not slavery when you agree that certain amount of damages will belong to the author if his property is used in a certain way.

PS
I’m happy if you finally learned something about voidable contracts and output decisions in a pure competition. :)

rtr March 26, 2007 at 8:18 pm

Sasha Radeta:

“Anyone who derives any service without my permission is trespassing, based on definition of ownership. In other words, I can exclude anyone from reading it, scanning it, or enjoying whatever service from it…”

You can only exclude people from reading your book by not trading it to them, or renting it to them. You’re insane if you think you can declare nobody can look at you or listen to what you say “without your permission”, or repeat what you say (in any form whatsoever).

Sasha Radeta:

“I can prove that someone used my book without permission based on unauthorized copies. It would be rather easy for Hans Hermann Hoppe to prove whether someone replicated his work: word-for-word.”

You’ve already declared ideas/words can’t be owned. Hans Hermann Hoppe’s “work” in a book is words/ideas/immaterial intellectual content which he can’t exclusively own unless he keeps it to himself in the first place. You’re stupid, plain and simple. How many replies now have you contradicted your statement that ideas are immaterial things which can’t be exclusively owned?

What about the existence of books by different authors? They’ve copied each other’s physical paper pages with splotches of ink form without permission from anyone. You can’t even own the physical form of a book, let alone any immaterial “work”/ideas/words contained within a book. Got that stupid? So who’s in violation of the book form? You’re copying someone with every word you write. Are you writing in your exclusive gibberish understood by nobody except you?

You can’t own any words. You can’t own the form of a book. You’ve got no ownership of ideas with which to restrict anyone’s actions by contract. It’s as absurd to think you can enforce a contract against copying content as it is to think you can enforce a contract barring someone from breathing air. You can only do so by violent coercive offensive force.

Sasha Radeta:

“I am the owner of my book with its own specific patterns of ink. If you use it and replicate it without permission, your trespass will be easy to prove in court.”

You don’t own any content. You don’t own any specific patterns of ink. You’ve already stated you agree so, stupid. You can’t make contracts restricting use of things you don’t own. Nobody can use your book without you by definition giving permission to its use by making it available. You are literally the Emperor with no clothes.

Not to mention, but if someone added there own signature, or an extra period, or a smudge, the specific patterns of ink would no longer be identical. Now you’re defeated on the entire spectrum of unique exclusive ink splotch content if any two authors have any specific words or letters in common if you object that an an extra smudge is not a specifically different ink pattern. You’re defeated on the entire spectrum of any two authors having the smallest form of ink splotch imaginable upon a page. Do you get how absurd copyright is now stupid?

Me smarter than > you.

Go ahead. Serve yourself up for further humiliation. I suppose you can take solace in that you are participating in a process of explanation simplification. I like sharpening it up in the lab with feedback before unleashing it to change the perceptions of the world one mind at a time. I want the slow minds to get it too eventually. That’s the power of truth.

Cosmin March 26, 2007 at 10:33 pm

Sasha, dismissing something is not the same thing as adressing it. You write so much, yet never adress any argument brought up. I thought you were a huge waste of time, but now I realize that you’re a complete waste of time.

Also, stop swithcing situations around to make them fit your babble. Specifically, you said:
“As far as replication goes, of course that you need something more than just your material…. You need a template (original work that you want to copy)….”
You don’t need a template. You need an idea. The idea may have come while using the original device, but that doesn’t mean it’s now property of the device seller.
Also, I didn’t know the concept of slavery was the exclusive property of “African-Americans”. People of all races have been slaves and not all Blacks have been slaves. And other Blacks have been slaves without being in America. You’re the one insulting Nature by being so retarded.

Sasha Radeta March 26, 2007 at 10:49 pm

RTR now completely lost his temper. He got upset over his inability to even think of a decent analogy. Besides calling me “stupid” a dozen times and talking gibberish, there is almost nothing in his post. There is probably white foam coming out of his mouth.

He is even proud of his ignorance of the basic contract law (I’ll get to his ignorance of basic economics on another thread).

I can certainly avoid unwanted use — even after I trade my good’s services to someone. For example, I can rent you my car at one rate, but our contract can specify damages if you use that car in street races. Also, I can sell you health insurance at one rate when you state that you are not smoker, but if you get caught smoking you will pay specified increase in coverage.

When you accept that certain service will cost you a contractually specified amount of money — you will have to pay that price after you use it.
When it comes to use of books — if I contractually agree with Dr. Hoppe that using his book for reproduction will cost me a certain amount of damages — I’ll have to pay that amount.

If I claim my innocence and point to a change of “patterns in ink” as RTR idiotically suggests, the court will laugh at me. They will simply state that Dr. Hoppe does not own a specific pattern. He owns a book which I agreed not to replicate — and they can prove that I did that beyond reasonable doubt.

Copyrights are not about “owning a pattern” — it’s about owning physical property that is unique and proving whether someone used in ways he did not pay for… Trespasses (unauthorized use) when it comes to book-replications are probably easiest to prove.

Do you understand now why I said that you can’t own a pattern, my poor handicapped friend? You completely misunderstood Rothbard’s reasoning behind copyright.

Sasha Radeta March 26, 2007 at 10:56 pm

Cosmin,

Unfortunately you were not intelligent enough to understand that African-American reference was a joke. Where do you think I come from… Tsk, tsk, tsk…

You said:
“You don’t need a template. You need an idea.”

But poor Cosmin, what if someone shares your level of intelligence and is unable to come-up with anything useful. I’m talking about people like you, who are (due to the cruelty of Mother Nature) forced to use someone else’s property in ways they did not pay for. I may feel sorry for you — but if you use someone’s property as a template for replication — and your contract stated that such use will cost you the X amount of dollars — you will legally owe that amount.

Best regards.

rtr March 26, 2007 at 11:34 pm

Sasha Radeta:

“I can certainly avoid unwanted use — even after I trade my good’s services to someone. For example, I can rent you my car at one rate, but our contract can specify damages if you use that car in street races. Also, I can sell you health insurance at one rate when you state that you are not smoker, but if you get caught smoking you will pay specified increase in coverage.”

You can rent your car because you can *own* your car, because your car is physical material property. You can do nothing to prevent someone looking at you, listening to you, repeating everything you say or do like a parrot, whether verbally, written, or any form whatsoever. We have the right to mimic, to copy. It’s called freedom to do with our own bodies and property what we please. There’s nothing you can say or write or think which can’t be said or written or thought by another.

If you want to be laughed at, go to a public square and declare that nobody can say what you are saying without violating your use ownership contract. But yet you think you can do the same thing in a written book? Your book property doesn’t extend into ownership of someone’s mind or actions. Your book can be copied without ever being physically touched by somebody, let alone in “stolen” possession, let alone in “violated contract”.

Sasha Radeta:

“If I claim my innocence and point to a change of “patterns in ink” as RTR idiotically suggests, the court will laugh at me. They will simply state that Dr. Hoppe does not own a specific pattern. He owns a book which I agreed not to replicate — and they can prove that I did that beyond reasonable doubt.”

I see more books out there than just one book by Dr. Hoppe. Those are additional copies of books, no matter the non-ownable specific patterns of ink or meanings in them. You see dummy? Every single book out there not made by Hoppe is a copy of a book.

I could write a book that consists entirely of the letter “A” and nothing more. It would be absurd to claim copyright on the letter “A”, to use violent force to prevent all uses without permission of the letter “A”. So I can own the entire English language by writing a series consisting of one letter from “A” to “Z”? That must necessarily be true for any copyright of written words to be valid, dummy.

Sasha Radeta:

“Copyrights are not about “owning a pattern” — it’s about owning physical property that is unique and proving whether someone used in ways he did not pay for… Trespasses (unauthorized use) when it comes to book-replications are probably easiest to prove.”

There’s nothing “unique” about a book with paper pages and splotches of ink on them. All books are paper pages and splotches of ink on them. Yup, you’re trying to claim contractual use ownership over something you don’t own, you’ve agreed you don’t own; meaningful content.

YOU CAN’T MAKE CONTRACTS ON THINGS YOU DON’T OWN!

As the reader can see, libertarian contract theory is fundamentally flawed.

Fred Mann March 26, 2007 at 11:39 pm

Sasha writes:

“Observing DVD’s content is its use (service derived). The fact that you observing it via your computer is really not the issue, since it’s the same as if you did it directly with your eyes. Trespass does not have to be a direct invasion of property — but it is an unauthorized use.”

In order to have trespass, the third parties must be using the physical item itself without authorization, and not simply observing. As I have already noted, MR. SMITH IS THE ONLY ONE USING THE *PHYSICAL DVD* . The fact that everyone on earth can simultaneously observe the transmission from the DVD does not change this fact. In this instance, we are talking about non-rivalrous “use” of the broadcasted SIGNAL generated from the DVD. This signal is non-physical, non-scarce, and not owned/ownable. Therefore, viewing of the transmission is NEVER going to be trespass as long as no physical invasion (or hacking) is occurring. If the third parties were actually ALL simultaneously using the PHYSICAL DVD (which is the ONLY thing that is owned and could be trespassed upon), then they could ALL be stopping, starting, and even transporting the physical DVD to a place of their choosing — all at the same time!!! This is impossible. Only Mr. Smith can do this, because he is the only one using the physical DVD. So, of all the aforementioned parties, Mr. Smith is the only one in CONTROL of the services of the DVD.

This whole thing is analagous to a situation in which you walk out in public and then claim people are using your person without authorization when they take your picture. But this is mistaken. You do not own your image (light reflected off of your body), or transmissions, etc….. Hopefully it is now clear that there is no trespass on anything physical or owned, and hence no tort is possible.

Interestingly, with something like a dance DVD, the WHOLE POINT of watching it is to replicate the moves in public. So agreeing to a copyright contract (no matter how strict or lenient) would be self-defeating for the viewer. This is true for all performance-related material.

Sasha Radeta March 27, 2007 at 12:35 am

You can rent your car because you can *own* your car, because your car is physical material property

And you claim that books are not physical, material property?!

I can absolutely contractually regulate how someone uses MY book (my property) – and so it happens that it is really easy to prove whether someone replicates my work of authorship without my permission.

RTR demonstrates his ignorance of how contracts are formed by saying:

If you want to be laughed at, go to a public square and declare that nobody can say what you are saying without violating your use ownership contract.

Oh geez… Should I even comment this one…What the heck. You even had worse ideas.

RTR, Contracts are not formed by someone shouting at the crowd. First of all there must be some evidence of agreement to terms of exchange of some goods and services. Secondly, if there is such agreement between parties, seller must be able to prove that someone violated his terms of use (like with unauthorized replications). In case of books, it is relatively easy to prove whether such violations took place, because you can show to court your original work and compare it to the copycat.

I see more books out there than just one book by Dr. Hoppe. Those are additional copies of books, no matter the non-ownable specific patterns of ink or meanings in them. You see dummy?

Dummy? You mean: a person who is stupid enough to realize that the author can have co-ownership rights with his publisher. That would mean that every single copy of Dr. Hoppe’s work is someone’s property – and that owner has an absolute right to sell you only restricted use of his property, while retaining those expensive publishing rights for himself. If you decide to enjoy those expensive uses, you will be legally liable for the price of such use (damages).

And the culmination of RTR’s nonsense came with this:

There’s nothing “unique” about a book with paper pages and splotches of ink on them. All books are paper pages and splotches of ink on them.

Is that how you comfort yourself before you go to bed – by saying that your “splotches” of ink are equal to writings of people like Dr. Hoppe? Blessed are the poor in spirit (euphemism), for theirs is the kingdom of heaven. That’s another one for you :) You feel better now?

Of course, intelligent people are able to find difference in ink patterns between incoherent ramblings like RTR’s postings and Dr. Hoppe’s writings. It would not be difficult to prove whether someone like RTR used Hoppe’s book without his authorization, just by looking at these meaningful ink patterns as material evidence.

I see that RTR in his ramblings and ravings switched to Mr. Smith and DVDs all of the sudden. He still has a hard time with concept of “use” (putting into service) – and the fact that owners can legally control services that can be derived from their property.

As I explained before, If Mr. Smith broadcasts a DVD over the internet – he will have to pay for expensive broadcasting rights that take into account the extent of financial injury caused by such act. As far viewers over the internet go, they were not in “control” of the DVD – but they used the service that was derived from that DVD – and unauthorized use is called trespass.

RTR insists on “control” issue (he even emphasizes that), simply because he tries to misinterpret Dr. Kinsella’s argumentation on why sending spam e-mail is nothing but a trespass. Anti-IP advocate, Dr. Kinsella, claims that it is a trespass if you force unwanted information onto someone else (like forcing someone to hear something unpleasant, thereby creating changes in that person’s brain and physiology in general)…. When thinking about it, I actually support only his case against spyware, because it allows someone else to use your property. What is really impotent is that Dr. Kinsella says:

the owner of property (such as a PC) has the right to control it, which means the right to excluse others from using it

Apply this statement to Mises’s definition of ownership and the DVD scenario. It is the owner’s right to control all services that can be derived from his good and its normal use (derived service) is watching its content.

Anyway, Mr. Smith violated his terms of use and copyright contract will be enforceable. When it comes to third party trespasses, it will always be too complicated for you.

Sasha Radeta March 27, 2007 at 12:41 am

Oh, sorry… I confused Fred and RTR… They sound so similar.

:))

When it comes to performance related material (like martial arts lesions or dance lesions) — of course that content-related restrictions would never be even proposed by their authors. Because, what would be the point of buying such material…

This is not the case with other types of DVD.

Sasha Radeta March 27, 2007 at 12:55 am

Anyway Fred,

Sorry about the mix-up, I said I don’t read everything RTR writes and I quickly glance over it.

Question for you:

Do you now finally agree that Mr. Smith in your example is violating an enforceable contract by broadcasting that DVD over the internet — and that he is liable for damages specified by that contract?

We’ll never reach consensus regarding the definition of “use” (services), since you choose not agree with Mises (and his definition actually explains how people actually charge people for viewing their films over the internet — and why these contracts are legally enforceable, since they legally control that service) — but I think that it is important to finally hear you now about copyright contracts.

Fred Mann March 29, 2007 at 12:41 am

“Do you now finally agree that Mr. Smith in your example is violating an enforceable contract by broadcasting that DVD over the internet — and that he is liable for damages specified by that contract?”

Sure, I think this is fine. I think two parties can make any contract they want, whether it means one of the parties agrees to do something, or to REFRAIN from doing something.
But the main problem with your scheme, as always, lies with the third-party situation. I think I explained it fairly well above. The third parties in the examples above are simply NOT trespassers. Maybe it will help to expand on my analogy?…
If you walk out in public and I take your picture, it is certainly true that you did not authorize me to do so. In that sense the pictures I take are “unauthorized”. But here is the key … NO AUTHORIZATION IS NEEDED!!! Once you make it possible for me to view your person from public property or from my own private property, I do not need permission to photograph you, paint you from memory, or describe you in detail to my friend. This is EXACTLY the same position that the third party viewers are in in our recent examples (i.e. Mrs. Smith or the viewers of the internet broadcast/transmission). It is literally IMPOSSIBLE for me to trespass with my vision, as long as I am standing on public property, or on my own private property (hacking and the like excepted). And this is true whether or not the thing I see was designed to be seen or not (i.e. whether its “normal use” involves being looked at).
The control you have over the services of a DVD (otherwise known as a transmission or broadcast) is limited to allowing or disallowing access to said service. The end. Anything beyond this would be tantamount to claiming ownership of the “service” itself, which you have already rightfully rejected.
And again … if these third parties are NOT trespassers, then your copyright scheme will easily fall apart.

Sasha Radeta March 29, 2007 at 1:49 am

Fred,

If you agree that in Mr. Smith’s scenario we have a responsible party (who should legalize his actions by paying whatever it normally costs to broadcast a film over mass media — plus some punitive damages)… then the issue of third parties is not so important. You may argue that once Mr. Smith’s gets his obligation to pay, that will be like a normal market exchange between him and a DVD company.

We still disagree on what constitutes “use” – and Rothbard would as well. Your paparazzi example does not illustrate something that we must agree on. Actually — I don’t think they should make money by using someone else’s body, without that person’s authorization. I don’t think that’s any more radical than Dr. Kinsella’s opinion that spam e-mail (information) is a trespass because it causes computer to record it, hence causing changes in it (I guess that I am trespassing against you right now, and you can have a tort case because now you agree with contractual copyrights, in spite of our differences when it comes to tort / third parties : )

Regards

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