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Source link: http://archive.mises.org/9365/an-internet-kgb-for-europe/

An Internet KGB for Europe

February 3, 2009 by

In the 21st-century hunt for downloaders, we have, instead of mercantalism, the underlying ideology of IP, the theory that “intellectual property” is akin to real property. An international host of lawyers, rent seekers, and bureaucrats are working for the development and enforcement of IP laws. But they labor under the false assumption that there is a scarcity of ideas. FULL ARTICLE by Tudor Smirna.

{ 68 comments }

unger February 5, 2009 at 5:09 pm

…I add: veto rights which cannot help but trump any physical property rights acquired through mere homesteading or purchase.

Which means, simply, either Locke was right or he wasn’t. If he was, there is and can be no IP. What’s mine is mine and I can do with it as I please without your interference, no matter what you dreamed up. If he wasn’t, then there are no solid property rights. What’s ‘mine’ isn’t mine at bottom, and all exists at the sufferance or mercy of the censors.

There is no third option.

Martin OB February 5, 2009 at 6:12 pm

@kitbuk

“Ideas are property because they are homesteaded by individuals.”

But IIRC, you are against patents. For instance, in another thread you said: “Nobody is defending the patents (and patent laws) that can be the subject of independent discovery”.

I thought your defense of IP was based on the rights one has on his own physical property, including the right to sell it under whatever conditions one may choose. If instead you want to base it on the idea that you can “homestead” an idea, then independent discovery should not be an impediment to enforce your supposed rights. If the thing the author owns is the pattern itself, and he has the right to prevent innocent third parties from using their physical property as they see fit, in the name of protecting the author’s exclusive right to this pattern, then what difference does it make whether or not there’s a causal, physical connection? Even with this requirement, you are not deriving the copyright from physical ownership; you are postulating it to the detriment of physical ownership, therefore the causal connection requirement buys you nothing in terms of justification.

BTW, the idea that you can homestead an idea is in itself an idea, therefore the first person to come up with this notion can homestead it and its negation. So if it were taken seriously, then the very act of debating about the topic would be an infringement of IP ;)

Regards,

Sasha Radeta February 6, 2009 at 2:47 am

Martin OB,

your definition of property as: “the right to control the physical access to a resource” is an incomplete one.

You don’t have to physically access someone’s property to violate his substantial property rights. As you could see from my stalking examples, your definition would lead to absurd situations of legalized rape and that’s why I didn’t address that issue.

Contract law always rests on ownership rights and the principle of “consideration” must be present. Otherwise, you can claim that a worker does not have a right to “control services that can be derived from his body (property)” – he could never be able to collect his wages from an employer.

Mises’s definition still holds…

ktibuk February 6, 2009 at 3:36 am

“IP is not imbedded in any physical object, ktibuk.”

Yes they are. The physical object maybe brain tissue, a piece of paper, or a digital media but ideas are always embedded in some physical, tangible object.

“And ideas are not property because they are not homesteaded by individuals. There is no entity outside of ourselves, called an idea, that you can homestead.”

Ideas are abstract reflections of things that are outside of ourselves. If you were raised in a vacuum where your senses couldn’t help you gather, homestead, those reflections of outside things, you couldnt homestead an idea.

“An idea is simply understanding some part of the world we live in. If you understand something about this world and then use that understanding to build an object, I can more easily understand that same world event by observing the object you’ve built. You can’t stop me from understanding.”

I don’t want to stop you homesteading you idea. There are basicly two ways of gathering an idea. One is homesteading, originating, the other is copying, getting it from some one else. I am saying copying without consent is aggression.

“My idea and your idea are completely separate, even if they both describe the same event in an extremely similar fashion.”

It may very well be, and we would both own our own ideas then. And this would be fine.

ktibuk February 6, 2009 at 3:53 am

“But IIRC, you are against patents. For instance, in another thread you said: “Nobody is defending the patents (and patent laws) that can be the subject of independent discovery”.”

Yes I am but that is because different individuals can homestead similar, or even the same ideas, independently. I am against copying without consent, which is aggression. I place no restrictions on homesteading.

“I thought your defense of IP was based on the rights one has on his own physical property, including the right to sell it under whatever conditions one may choose.”

No, physical property just helps protect IP, which is a technical issue. Ethically I say ideas can be homesteaded and owned.

“If instead you want to base it on the idea that you can “homestead” an idea, then independent discovery should not be an impediment to enforce your supposed rights.”

This doesn’t follow at all. I am saying the important thing, the only thing that matters when it comes to property is the theory of homesteading. If you have an idea, either you homesteaded it or you got it from someone else. And if you got it from someone else you either got it legitimately (as a gift or part of an exchange) or illegitimately (against the wishes of the owner). If you got it, against the wishes of an owner you committed aggression.

“If the thing the author owns is the pattern itself, and he has the right to prevent innocent third parties from using their physical property as they see fit, in the name of protecting the author’s exclusive right to this pattern, then what difference does it make whether or not there’s a causal, physical connection?”

No, he has the right to stop third parties from copying the pattern he homesteaded, he can not stop them to homestead their own similar pattern. There is a difference between copying and homesteading. Two people living in isolated islands, may not copy from each other but they may very well homestead their own ideas.

I don’t quite get what you mean by causal and physical connection.

ktibuk February 6, 2009 at 4:26 am

“BTW, the idea that you can homestead an idea is in itself an idea, therefore the first person to come up with this notion can homestead it and its negation. So if it were taken seriously, then the very act of debating about the topic would be an infringement of IP ;)”

If there is no justified claim that “a unique idea can only be homesteaded by one individual” ( and I don’t think anyone can seriously claim this), there is no negation or contradiction at all.

The “theory of homesteading” could be homesteaded by many different people, at different places or times. The most prominent was John Locke, but I am sure many people unknown to us thought of similar, or even the same thing in the past.

Martin OB February 6, 2009 at 9:29 am

@ktibuk

“If there is no justified claim that “a unique idea can only be homesteaded by one individual” ( and I don’t think anyone can seriously claim this), there is no negation or contradiction at all.”

Let’s see. Suppose person A was the first to have the idea that an idea can be homestead. Then A tells this idea to B, under the condition that B will keep it secret. Then B breaks the contract and tells everyone about A’s idea. Now no-one else has the opportunity to independently discover the idea (or its negation), because they already know it, because B told them. So their possession of the idea is illegitimate and they can’t use it in argumentation without A’s consent. There you have it.

Martin OB February 6, 2009 at 9:47 am

@Sasha

“You don’t have to physically access someone’s property to violate his substantial property rights. As you could see from my stalking examples, your definition would lead to absurd situations of legalized rape and that’s why I didn’t address that issue.”

Your examples were not about rape, they were about defamation (how could you ever rape someone without physical access?). I don’t believe that someone has the right to prevent others from using footage taken in public places, except if they signed a contract to the effect.

Controlling the use of one’s image is also a case of IP, and I don’t accept it, so I find your examples uncompelling. Just like the definition of property you gave, these self-image-ownership examples also beg the question.

BTW, care to provide a link about where Mises used this definition, please? I’d like to get some context.

Regards,

ktibuk February 6, 2009 at 11:04 am

@Martin

That scenario just create a possibility that someone else might have the ability to copy the original idea, it doesn’t make independent discovery impossible. If you think it does, it means you are assuming access to the minds of the rest of humans that live and will live in the future.

Rockyway February 6, 2009 at 11:35 am

The French government is against people downloading things from the internet; (this was the original topic) but don’t they have themselves largely to blame for this phenomenon? Haven’t they caused the feeling (via the welfare state) among people that things should be free?

The socialist state offers (to at least some classes) everything from housing, education, and food to medical care for free. This has caused a feeling of entitlement in many people; especially the young generation.

For most people this isn’t a position they’ve come to by philosophical reflection, but merely a feeling; the spirit of the age if you will. (What we see here are the old revolutionaries saying to the young; ”this far and no further.”)

p.s. Isn’t there an irony in the French government giving young people free newspapers, but not allowing them free downloads?

Sasha Radeta February 7, 2009 at 3:21 am

Martin OB,

I didn’t use the term “rape” literally, but I think my examples were extreme enough to convince most libertarians that your definition of ownership rights is not precise enough to protect our lives and privacy. With common-day surveillance equipment, one does not need physical access to do harms I described. That’s the reason why state is in love with your definition… Try reductio ad absurdum approach: if a definition of “ownership” does not protect humans from such invasions – just try to consider a different one.

—————————————————————
As I stated, services that can be derived from our property (including our labor) are all real forms of consideration in any contract — and that’s why Mises’s definition logically holds. By legally controlling services that can be derived from us, we are able to seek compensation for our labor, even when it does not involve any “physical access” to our bodies…

http://mises.org/humanaction/chap24sec4.asp

PS
All the talk about “idea ownership” or impossibility thereof seems to be nothing more than a straw man argument, purposefully planted on Mises.org. Even statist textbooks never claimed that ideas can be copyrighted. Only real forms of authorship (private property without any doubt) can be subject to copyright.

Martin OB February 7, 2009 at 11:43 am

@ktibuk

“That scenario just create a possibility that someone else might have the ability to copy the original idea, it doesn’t make independent discovery impossible. If you think it does, it means you are assuming access to the minds of the rest of humans that live and will live in the future.”

How so? I’m not assuming access to the mind of anyone. I’m just assuming that the new idea is so widely publicized that everyone knows it before they can independently discover it.

If you tell me an idea, then it’s indeed impossible for me to discover it independently, by definition. If everyone is told about the idea, everyone is precluded from independent discovery of the idea.

Martin OB February 7, 2009 at 1:01 pm

@Sasha

[--
I didn't use the term "rape" literally, but I think my examples were extreme enough to convince most libertarians that your definition of ownership rights is not precise enough to protect our lives and privacy.
--]

You do realize that most people, libertarian or not, find a big ethical, legal and factual difference between rape and defamation, right? I’d say that virtually all libertarians think rape is an aggression and physical coercion against the rapist is justified.

OTOH, most libertarians I’ve talked to think that freedom of expression includes the right to defame and make people embarrassed. If you are doing something you are ashamed of, don’t do it in public. If you do it where people can see it, then they are allowed to record it. Even if you do it in your porch, people can see it from the street, so it’s up to them to take footage of it. So, do it indoors. If they send X-rays to see through your wall, they are invading your property, but if they just record it with an infrared camera, they are not invading your property, so if you are worried about that possibility, you can either use some technology to prevent your emission of a distinct infrared signal (for instance, thicker walls, possibly with embedded heat sources to increase the thermal noise) or you can move to a fenced community where everyone must sign a contract not to spy on anyone.

Private fenced communities are my preferred solution to all those cases where you don’t want to put up with some annoying conduct by your neighbors, but making this conduct illegal would be against libertarian principles.

[--
With common-day surveillance equipment, one does not need physical access to do harms I described. That's the reason why state is in love with your definition... Try reductio ad absurdum approach: if a definition of "ownership" does not protect humans from such invasions - just try to consider a different one."
--]

Far from being in love with my definition, the State rather hates it. Most legal frameworks nowadays are chock-full of “ifs” and “buts” about your right to control your physical property. Intellectual monopoly (so-called IP) and reputation rights are just some of those limitations.

Most legal systems have tight controls about how you are allowed to use your capital goods. Labor legislation is an obvious example. In principle, these limitations can go so far that your ownership of the means becomes irrelevant, and the State has the effective control of production. This is what Mises warned about with his definition and explanation of property in Human Action (BTW, thanks for the link). He was focusing on what the State allows you to do with your own means (derive from them any services you may choose to, either for you or for other people, either for free of for a fee), not on your alleged right to prevent others from taking advantage of the mere fact that you are using your means in a particular way, thus providing some kind of “service” they have to pay for.

Sasha Radeta February 8, 2009 at 4:42 am

Martin OB:
“Private fenced communities are my preferred solution to all those cases where you don’t want to put up with some annoying conduct by your neighbors”

Not even fenced communities can protect you from a neighbor that would stalk your child and broadcast her life online, revealing her identity and private moments to millions of mentally sick individuals… (if you call such action “defamation” or a mere “embarrassment” the incorrect definition of property rights is the least of your problems).

In other words, a perfect solution to satisfy your definition of property rights is to put us all in prison. We should all live behind bars and leaded paint to satisfy your definition of property rights. Like I said, try reductio ad absurdum: when a “libertarian” premise takes you to a conclusion that we should all live in prison of some sort – that definition must be wrong.

Martin OB:
“This is what Mises warned about with his definition and explanation of property in Human Action (BTW, thanks for the link). “

You missed Mises’s major point: property rights are not divine and sacred – it is a human device designed to make our lives bearable. Instead of hiding behind prison walls (your suggestion), his definition of property rights would completely protect us from harassment that would be completely legal in your ideal world. Also, his definition of property rights explains why we have a right to sell our labor, rent and other services – including a limited use of our property, such as works of authorship (our real, tangible property).

Martin OB:
“…not on your alleged right to prevent others from taking advantage of the mere fact that you are using your means in a particular way…”

Majority of book authors are merely taking advantage of the fact of possessing a good that is so distinctive that you can easily prove someone else’s unauthorized use (or trespass), as well as any breach of contractual terms of use. Also, with free-market contracts they can dictate what their customers can do with their property.

People here often forget the fact that there is an easy way in which you can obtain the right to replicate other person’s works of authorship…
Authors often sell co-ownership rights for their books for the prevailing market price. Unlike these publishers, who often have to pay large amounts of money, you dislike the price required to treat someone else’s books like your own property. Instead, you simply want to pay $14.99 for a limited use of someone else’s property – and to turn around claiming this property is your own. No matter what property rights definition you use, such violations are just a form of theft.

Anti-copyright crowd forgets that works of authorship are like any other property. If I hold a property title to some books printed – I have every right to claim this property cannot be used by other people, unless they agree to limited terms of use (contract). The distinctiveness of these books will help me to identify any trespassers – or people who did not have my permission to pick up my book and to treat it as their own property.

===============================================================

HOWEVER, regardless of how we define property I hope we all agree on these simple facts:
- works of authorships are material objects that can be owned
- a rightful owner has every right to dictate allowed terms of use (contracts)
- a rightful owner can classify any unauthorized use of his property – including works of authorship– as a trespass
- a trespasser should be liable for all injuries caused by his unauthorized use of someone else’s property – including the use of someone’s works of authorship

Martin OB February 8, 2009 at 8:24 pm

@Sasha

[--
Not even fenced communities can protect you from a neighbor that would stalk your child and broadcast her life online, revealing her identity and private moments to millions of mentally sick individuals...
--]

Why, of course they can. If spying is against the community bylaws, those neighbors would face the correspondent economic punishment and possibly expulsion. That’s a powerful deterrent.

[--
(if you call such action "defamation” or a mere "embarrassment” the incorrect definition of property rights is the least of your problems).
--]

Actually the name is “invasion of privacy” rather than defamation. But even “defamation” and “embarrassment” are miles closer as a description of this conduct than “rape”. Pots and kettles.

[--
In other words, a perfect solution to satisfy your definition of property rights is to put us all in prison. We should all live behind bars and leaded paint to satisfy your definition of property rights. Like I said, try reductio ad absurdum: when a "libertarian" premise takes you to a conclusion that we should all live in prison of some sort - that definition must be wrong.
--]

So, are you telling me that any kind of fences are a prison for you? I must assume there are no fences around your house, and no protected borders in your country? Obviously, fences in fenced communities are meant to keep strangers out, not to keep inhabitants as prisoners.

Moreover, if you insist that any restriction in your right to plant your feet on every square centimeter of the Earth is a form of imprisonment, then no one has the right to keep you out of their property. Here’s a nice reductio ad absurdum.

[--
You missed Mises's major point: property rights are not divine and sacred – it is a human device designed to make our lives bearable.
--]

Mises doesn’t seem to be particularly interested in the origin and legitimacy of private property. IIRC, other often-quoted libertarian authors, like Rothbard, would contend that, if not holy or sacred, property rights are at least natural rights, and not just a social convention.

Anyway, let’s admit that the best definition of property rights is the one which makes life most bearable. Different definitions have different consequences. The detrimental consequences of my definition are relatively easy to solve. Those of yours, in my opinion, are far more likely to make life unbearable. You are conveniently bringing up the example of child stalking to incite moral outrage and disgust, but the same reasoning can be applied to all situations when someone feels distressed or outraged by the opinions of others or the truth others say about him. It would be a breeze to impose worldwide censorship to such a degree that free speech becomes a harmless joke. It can also justify Gestapo-style enforcement of intellectual monopoly (so-called IP).

[--
Instead of hiding behind prison walls (your suggestion), his definition of property rights would completely protect us from harassment that would be completely legal in your ideal world.
--]

There’s no mention of privacy rights in Mises’s definition of property, and no treatment of harassment in his elaboration of it. That’s just your interpretation of his definition.

[--
Also, his definition of property rights explains why we have a right to sell our labor, rent and other services – including a limited use of our property, such as works of authorship (our real, tangible property).
--]

So does mine (which I believe is the same as his, with a different wording).

[--
Majority of book authors are merely taking advantage of the fact of possessing a good that is so distinctive that you can easily prove someone else's unauthorized use (or trespass), as well as any breach of contractual terms of use. Also, with free-market contracts they can dictate what their customers can do with their property.
--]

You mean under current copyright legislation? Well, no. Copyright law is not based on contract law. Otherwise it could not be enforced against people who didn’t sign a contract. Contracts, by definition, can never oblige a third party.

[--
Authors often sell co-ownership rights for their books for the prevailing market price. Unlike these publishers, who often have to pay large amounts of money, you dislike the price required to treat someone else's books like your own property. Instead, you simply want to pay $14.99 for a limited use of someone else's property – and to turn around claiming this property is your own. No matter what property rights definition you use, such violations are just a form of theft.
--]

They are a breach of contract by whoever signed it. Of course, your definition of “theft” may include all kinds of breach of contract, but then you are trivializing the concept. Still, no third parties can be held liable.

[--
HOWEVER, regardless of how we define property I hope we all agree on these simple facts:
--]

Maybe. Let’s see…

[--
- works of authorships are material objects that can be owned
--]

Check.

[--
- a rightful owner has every right to dictate allowed terms of use (contracts)
--]

Check.

[--
- a rightful owner can classify any unauthorized use of his property – including works of authorship-- as a trespass
--]

If your definition of “use” need not involve physical access to your property by the “user”, that is, if anything he may learn from third parties about your property is a form of “use”, then you are begging the question and no, I don’t agree. Otherwise, I agree.

[--
- a trespasser should be liable for all injuries caused by his unauthorized use of someone else's property – including the use of someone's works of authorship
--]

It depends on your definition of “injuries”. In the strict sense, injuries to one’s property can only be a partial or total elimination of its use value. I wouldn’t be so fast to include a diminution of its trade value, that is, of lost business opportunities, in the definition of “injuries”. This needn’t mean that an economic compensation beyond what’s derived from the physical destruction of property is out of the question, but it can’t be justified as a mere restitution of injuries suffered by property. And of course, any kind of economic punishment or restitution obligation only concerns the trespasser, and never third parties.

Sasha Radeta February 9, 2009 at 1:46 pm

Martin OB,

So let’s conclude that even in your ideal world — the one in which we can protect our privacy only in a maximum security prison… a world in which millions of maniacs can watch your child’s life, while you helplessly wait for something horrible to happen… Even in such world, which seems to be a perversion of libertarian ideals, we can conclude the following still holds:

- Person who purchases only limited use of someone’s work of authorship is liable for breach of contract if he violates those terms of use. These terms can stipulate that any unauthorized copies will be the property of the original owner.

- If a third party (outside of contract) uses other person’s work of authorship without owner’s permission he is committing a trespass and liable for tort if an injury results from such unlawful action. We both agreed that bona fide purchasers of unauthorized copies are not to be held liable for their actions. People who knowingly purchase unauthorized copies (property of copyright holder), the will be liable for purchase of stolen goods.

- Damages in tort are awarded generally to place the claimant in the position in which he would have been had the tort not taken place. Damages for breach of contract are generally awarded to place the claimant in the position in which he would have been had the contract not been breached. These are basic principles of justice, recognized by common law, which preserves many of libertarian principles.

In short, you recognized that works of authorship that must be picked-up in order to be copied could be copyrighted (with contract and tort law), even without any state protection. You only dispute copyright violations that occur without “touching” someone’s CD, book, etc.

While we agree that a trespass is “unauthorized use,” we only differ on what constitutes “use.” In order to limit the term “use” only to “physical access,” you created completely absurd world in which maniacs can thrive and freely prey on future victims, while decent people must hide in imprisonment. You think that people should accept all that evil, just to dispute only a smaller number of copyright violations. You practically proved my point.

Best regards!

Martin OB February 17, 2009 at 4:56 pm

@Sasha

I dismantled your “prison” argument, but instead of trying to address my rebuttal, you keep on repeating the argument as if it had never been challenged. Occasionally I’m rather stubborn myself, but I don’t think a debate is or should be a stubbornness contest, each one repeating the very same statements until one gets tired and leaves.

Unauthorized copies are NOT stolen goods. They are just that, unauthorized copies, period. People who buy them (in a contract-based-IP society) are not cooperating with burglary, they are just benefiting from a breach of contract.

Here’s a point of disagreement. I don’t think a breach of contract is morally equivalent to a physical aggression, moreover I don’t think all contracts should be honored and actively defended by the State (or private protection agencies). Many kinds of contracts (for instance, a slavery contract, or a contract authorizing murder upon losing a bet) should be held null and void. Not forbidden, just unenforced and unenforceable. In the absence of a State, private arbitration agencies would refuse to validate some contracts. If there’s a State, it should do likewise.

Peaceful coexistence and de facto agreement, plus reputation, is all a free society needs. Contracts, while a useful social device, are secondary.

By definition, a contract only obliges those who signed it, never third parties. This is an essential difference between contracts and property: arguably, people who cooperate with a burglar or a vandal in his wrongdoings can be held liable of some of the damages he caused. In contrast, a contract should be phrased in such a way that breaking its terms and conditions results in a specific compensation the breaker owes to the other party, making tort law irrelevant for contract violations.

Moreover, regardless of whether tort law is invoked or not, a third party should never be held liable for convincing the breaker to violate the terms and conditions of a contract. It’s the signatories’ responsibility to respect those terms and conditions, or to pay the right compensation otherwise.

regards,

Sasha Radeta February 18, 2009 at 12:59 pm

Martin OB,

You didn’t dismantle anything. You kept blabbing nonsense about non-valid gambling contracts and slavery contracts (which cannot be enforced in libertarian world and are completely invalid). If you know anything about libertarian theory of contracts, you would know that you didn’t establish any relevant arguments against contractual copyright. If you advocate violations of contracts – you are against free markets that completely rest on contracts, explicit or implied (market exchanges),

I never claimed that third parties are obligated to respect contracts they didn’t sign – but to respect other people’s property.

Once again you ignore the fact that free-market contracts can stipulate that any copies created by the purchaser of limited services will belong to the author. If such copies are sold to third parties as if it were the property of contract violator – it is a clear equivalent of sale of stolen goods.

Also, you keep ignoring the fact that even if you somehow excuse third parties from knowingly purchasing these stolen goods, you still admit that the person who violates copyright and terms of use are responsible for economic injury caused to the author. That’s enough from you.

When you said:
“I don’t think a breach of contract is morally equivalent to a physical aggression”
You really demonstrated complete lack of knowledge about theory of contracts. When ownership titles are exchanged based on a contract, any contract violation is a moral equivalent to pure theft and aggression against property.

Here, read:
http://mises.org/rothbard/ethics/nineteen.asp

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