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Source link: http://blog.mises.org/13327/l-neith-smith-on-ip/

L. Neil Smith on IP

July 19, 2010 by

I hesitate to link this essay of L. Neil Smith because, if it influences you without his consent, you are guilty of stealing from him. Maybe you think that you have his implicit consent because he has posted it online. He doesn’t see it that way.

“There is no discernible difference between physical property and intellectual property,” he writes. “The farmer begins with a tree-covered lot that he must clear and plow and plant, and the writer with a damnedly blank page or screen.”

What is wrong with that analogy? Yes, the farmer owns the land. Yes, the writer owns the page and screen. The farmer, however, does not own the idea of plowing and planting. Nor can the writer prevent others from arranging letters and words in a particular way because he somehow owns the ideas expressed on his paper. Land and paper need economizing. Plowing and writing do not: they are ideas and can be infinitely reproduced without rivalry over the original.

To put it another way, if Crusoe, alone on a island, discovers how to pick berries, he owns all the berries he can pick. No one may steal what he has gathered. If Friday shows up and start to pick berries in the same way, Friday is not thereby a criminal. He is merely learning just as everyone in society learns from others. If Crusoe uses violence to stop him from picking berries on grounds that Crusoe owns the very idea of berry picking, it is Crusoe who is the criminal.

If you are a baker, the cake you make is your own. The idea of baking, and the techniques you use, cannot be claimed as your exclusive possession if you share them with others. If you are a snappy dresser, you own your tie and hat, but if every time you go out in public you are inviting others to share in your ideas of wearing a tie and hat.

I would suggest some charity here for Mr. Smith. He says that he hasn’t thought much about this topic, and that undoubtedly accounts for his errors and wild rhetoric. But truly this is a hard subject for libertarians. They’ve been misled for many years, even decades, by sloppy thinking on the topic. It takes a long time to think through all the implications. The biggest problem for Smith is that he has painted himself into a corner and probably won’t admit error, no matter what.

{ 274 comments… read them below or add one }

Stephan Kinsella July 19, 2010 at 4:47 pm
Fiat Reality July 19, 2010 at 4:54 pm

It seems an area governed by common law. Common practice on the internet is, if something is behind a paywall it is protected, if it’s accessible by Google and search engines, it is fair game.

An exception here is, at a certain level of stature, you are limited to what you can take from the common area. While it is accepted that a blog can “borrow” from the New York Times online postings, it is not acceptible for the New York Post to “borrow” from the New York Times.

It is also plain old good commerce to seek reasonable liquidated damages when someone has overstepped. I.E. New York Times should seek approximated compensation from New York Post for diverted revenue, not attempt to get DOJ to put New York Post out of business or to collude with legislators to enact industry stifling rules against everyone including 99.8% of parties who did not damage anyone.

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Jim Davidson July 19, 2010 at 6:30 pm

It isn’t clear to me that common practice excludes bit Torrent sites where films and music and books are made available for free. If common practice is the only standard by which to judge, then a huge number of authors and artists and publishers and filmmakers have their products copied repeatedly without payment, without any royalties, on pirate sites. If common practice is the standard, then it seems relevant to notice that people all over the world have bootleg copies of software and operating systems that are sold under licence agreements in some parts of the world. It is very common for people to acquire free copies, bootleg copies, and heavily discounted copies of documents, computer files, films, etc. Often these common activities are prohibited by legislation. (I do not say by law since I don’t agree that legislation is law.)

It isn’t clear to me that the authors of the Shire Society Declaration were charging a fee for signing the document. So I cannot see any lost revenue for Neil under this situation.

Neil’s covenant of unanimous consent is derived from other works. Ayn Rand wrote about the initiation of force long before Neil became a professional writer. I think Murray Rothbard traced the origin of the non-aggression principle to Thomas Aquinas, which places it in the Thirteenth Century. I don’t recall ever seeing Aquinas mentioned in Neil’s various published versions of the covenant, nor Rothbard, either.

I would like to point out that many people who have created excellent things have had a great deal *more* success and generated much *more* revenue by placing large chunks of their oeuvre in the public domain. Monty Python, for example, put all of their stuff up on Youtube, which made it immediately accessible to several generations who had not seen it on television on the BBC or PBS back in the early 1970s. I’ve heard varying accounts up to a figure of 20,000 times greater revenue resulting from this action. In other words, far more people bought Monty Python stuff after it was available for free on Youtube than had been buying it before.

Jeffrey has rather famously, and I think quite brilliantly, placed the vonmises.org catalogue of books on the web for free. He’s gotten lots of sites around the world to mirror the complete library, and I think some sites are mirroring parts of the library. All to excellent effect on the revenues of the Institute. Hurray for brilliant marketing. Good show. Well done. Kudos.

Rather than wondering whether quoting Neil’s essay cited above would cause him to regard you as a thief, I suggest encouraging Neil to follow in the footsteps of Python and Tucker. I think Scott Bieser has already done so, as I see the graphic novel version of The Probability Broach is still available for free at bigheadpress.com.

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Russ July 19, 2010 at 6:21 pm

“I hesitate to link this essay of L. Neil Smith because, if it influences you without his consent, you are guilty of stealing from him.”

Do you think you help your cause by engaging in such blatant strawman arguments, Jeffrey, or do you really believe what you wrote above is true??? He’s not opposed to something he wrote influencing someone, he’s opposed to someone copying it and profiting off of it without his permission. There is a difference.

Granted, I think Smith makes a number of philosophical errors. First off, he confuses or conflates copying and plagiarism. Copying something is only plagiarism if you claim you created it yourself. Second, he says that the standard anti-IP argument that a copyer doesn’t steal anything because the originator still has a copy is like saying that raping a non-virgin is OK; after all, neither has really lost anything. There’s a flawed argument if I ever saw one. And he says “in a moral context, there is no discernible difference between physical property and intellectual property”. That’s idiotic. If one is going to cleave to a natural rights philosophy, one should have the common courtesy to be consistent and consider the nature of physical property and intellectual property, especially their natural differences. Last but not least, he accuses anti-IPers of lacking in imagination and encourages them to read his anti-government novels, as if no anti-IP person is an anarchist(!).

In short, L. Neil’s article is a really poor argument for IP that tries to use style and sarcasm to make up for a pronounced lack of substance, and doesn’t take his opponent’s philosophy seriously. In fact, I don’t think it even takes his own philosophy seriously. It has so many Mack-truck-sized holes in it that misrepresenting it in an effort to defeat it should not be necessary.

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Curt Howland July 19, 2010 at 10:46 pm

“he’s opposed to someone copying it and profiting off of it without his permission.”

Then I have to ask, did you notice that the Shire Society was not charging anything?

Does it make a difference to you to know that they were not profiting off of it, at all?

The “send $2 to:” was for registering the signing of the _Covenant for Unanimous Consent_ which, last I looked, is both online and unchanged.

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Russ July 20, 2010 at 3:08 pm

Well, there are other ways to “profit” off of something than in the strictly monetary sense. But maybe I should have said “he’s opposed to someone copying it and profiting off of it without his permission.”

At any rate, the idea that L. Neil would make someone pay for reading one of his books and being “influenced” by it is still extremely silly.

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Keith Hamburger July 19, 2010 at 11:26 pm

“Do you think you help your cause by engaging in such blatant strawman arguments, Jeffrey, or do you really believe what you wrote above is true???

In short, L. Neil’s article is a really poor argument for IP that tries to use style and sarcasm to make up for a pronounced lack of substance, and doesn’t take his opponent’s philosophy seriously.”

So, Tucker’s argument is somewhat specious, as is Neil’s. Seems reasonable to me.

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Peter Surda July 20, 2010 at 12:23 am

He’s not opposed to something he wrote influencing someone, he’s opposed to someone copying it and profiting off of it without his permission. There is a difference.

The difference is in interpretation. Just like “influence”, “copy” is also merely an arbitrary chunk of causality.

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Tim G. July 19, 2010 at 7:17 pm

Yes, this is a tough issue for me. I’m still weighing the arguments. Here’s another berry scenario: Suppose Caruso picked tons of berries in a fast, mysterious way and that Friday could not figure out how Caruso did it so fast. Suppose Friday asked Caruso how he did it. Caruso is under no obligation to tell Friday anything. If Caruso does decide to divulge his secret, he is free to set the conditions upon which this is to be done. Caruso could say to Friday: “I’ll tell you my secret, but only on the conditions that, a) you do not tell anyone else how to do it, and, b) that you pay me a royalty in the form of a modest share of the berries you pick using this method.” I think this would be a valid contractual agreement, and the damages for breach would be the royalties that Caruso would have arranged by contract but for the breach. On the other hand, if Friday invested in his own research and development and independently arrived at the same berry-picking method as Caruso, then Friday may use and freely disseminate that information without owing Caruso anything. I think writing works similarly. No author is under any obligation to share the fruits of his labor with anyone. Therefore, he may set the terms upon which his writing is released, which may include non-copying and royalty provisions. If, however, another person, through his own diligence, composed a similar series of words and used them to express and freely disseminate similar ideas, there would be no violation, in my current view.

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Stephan Kinsella July 19, 2010 at 7:54 pm

The problem is if Tim arrives and Friday tells him the secret. Now Tim knows it, and has not entered into a contract with Caruso. Maybe Caruso can sue Friday for breach of contrat, but he can’t stop Tim from using his knowledge.

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Darcy July 19, 2010 at 9:17 pm

Tim is an accomplice of the breach of contract. He is also a violator.

If you buy a stolen car from someone, you have to return the car and you are not entitled to your money back.

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Richard July 19, 2010 at 9:33 pm

There is a difference.

Caruso (Crusoe?) would still have his ‘secret’ knowledge even though Friday let Tim in on it.

If Friday rented a car from Caruso, and then sold it to Tim (or even gave it to him) in violation of his agreement with Caruso, Caruso no longer has his car.

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Darcy July 19, 2010 at 9:52 pm

Whether or not he still has anything left does not matter, his rights have been violated.

If you are raped, you still have your body left.

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Richard July 19, 2010 at 10:39 pm

If someone took my car without my permission, and then returned it, my rights still would have been violated (I think this less gruesome example makes the point equally well thanks very much).

If someone drugged me against my will to make me divulge certain knowledge, my rights would have been violated, even though I still retained that knowledge.

If someone divulged knowledge I gave them in confidence (through a contract) they would be engaging in a breach of contract (as Friday had done).

Friday divulges knowledge to Tim. What has Tim taken from Caruso? What contract has he broken with him?

Tony July 20, 2010 at 3:11 pm

Whether his rights would have been violated is begging the question, since this debate concerns whether he *does* indeed have those rights to begin with.

The analogy with rape is a false analogy. Rape is physical aggression. You do not have physical integrity (someone “broke into your body” and used it, during which you yourself can not make decisions over it) if someone has raped you.

Just because in both cases rights were violated (which is begging the question) does not mean they are similar.
While they are both fruits, you cannot compare apples and oranges either, which is what you are doing now.

Keith Hamburger July 19, 2010 at 11:32 pm

What if Tim simply watches Friday and learns the technique without ever being told? What if Tim watches Crusoe and learns a significant part of the technique and is told some key points by Friday? What if Tim watches Crusoe and learns a significant part of the technique and watches (but is not told by) Friday to learn the remainder of the technique? What if Tim watches Crusoe and learns the entire technique and Friday had nothing to do with it? What if Tim watches the same person that Crusoe learned key points from and develops the technique on his own, same as Crusoe did?

Any and all of these issues have resulted in losses in court for IP violations but, as far as I can see, no contract nor any rights have been violated.

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Sasha Radeta July 20, 2010 at 5:56 am

How’s this berry example even remotely pertaining to IP? IP never deals with secrets whispered to other people… It is always comes down to the exclusive ownership rights over the original works of authorship — in cases where owner wants to allow strictly limited use of his property, while retaining all other rights.

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Greego July 20, 2010 at 11:54 am

Sasha, what if:
- Crusoe sells Friday a documented secret (creative/lengthy/interesting enough to pass whatever arbitrary line must be crossed to count as ‘original works of authorship’)
- It’s sold under a contract that he not copy it (and said contract is physically separate to the document itself, or, Friday chops that bit off, or it’s spoken, or something else) that somewhat resembles modern copyright law
- Friday hides it under a coconut
- Tim comes along and finds it, proceeds to fire up his primitive printing press and gives away copies to Stephan, Jeffrey and Lew. Lew decides to sell his copy to Ludwig.

Considering the outcome, has Friday breached his contract? Is Tim an ‘accomplice’ to contract breach? Are Stephan, Jeffrey and Lew accomplices? Are they all bound by the same contract that Friday is, despite not having knowledge of it? Is Lew’s subsequent sale the same as selling stolen property?

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Darcy July 20, 2010 at 5:58 pm

In this case, Tim is the thief, and quite clearly so, and all of his copies are counterfeit and his accomplices must return or destroy them.

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Keith Hamburger July 20, 2010 at 8:09 pm

The owner of something is the only person that has a claim on the posessor when property is stolen according to common law. Therefore, Friday might have a claim for the loss of his property but there doesn’t seem to be any claim on the part of Crusoe.

Similar to my questions above that no one seems interested in tackling.

Tim G. July 20, 2010 at 8:42 pm

@Stephan: Yes, as I saw it, Friday would owe all the damages, so that if Friday blabbed to me (Tim) and four other people, Friday alone would be on the hook to CarusoE (sorry for my mis-spelling!) for five people’s worth of royalties.

The Carusoe-and-berry scenario is based on the assumption that for a contract to be valid there must be some kind of physical meeting of the minds and a handshake, more-or-less, but with a piece of writing, this need not necessarily be the case. How do people feel about the “IF YOU AGREE TO THESE TERMS, CLICK ‘I AGREE’” procedure that attends the installation of proprietary software? Here, the author of the software attempts to bind all users of the software to a contract regardless of how the software was obtained. No meeting or handshake is necessary. I think a copyright page in a book is a primitive attempt to serve a similar function: It is a notice to all that the author/publisher has released the work upon the condition that those who use it refrain from copying and re-distributing.

@Sasha: I think there are many parallels between IP and this sort of contract. I think copyright law is an attempt to make the above type of contract the cultural default (i.e. a “right”). For me, this is the heart of the IP question: Should we presume that this sort of contract is in effect for all intellectual expressions that we come across? I think my position is “no”, but, upon evidence that there is such a contract (i.e a copyright page, a patent number, or a click-to-agree button), i presently believe the contract should be given effect.

@Greego: If Friday hid the secret under a coconut and I came along and found it, Friday would probably be liable for all damages on the breach because he effectively “told” me the secret through his negligent hiding. Of course, it would depend on the exact wording of the contract.

@Darcy: Whether I would be liable for my use of the secret that I found under the coconut would depend on a few things: If I trespassed onto Friday’s clearly-marked property and removed the secret from it, then I should be liable for trespass and theft. If the secret document were clearly marked with something like: “TOP SECRET. BY READING THIS INFORMATION YOU AGREE TO THE FOLLOWING CONDITIONS: A) … B) … C),” and I read the information in spite of this stipulation, then , in my current view, I should probably be held to conditions A), B), and C), which may include a non-copy clause. If the secret looks like just some scrap of paper with interesting notes on it, I don’t believe that I owe anybody any duty to visit the island patent registry and/or copyright office to see if anyone has acquired a patent or copyright on the information before putting it to use and/or distributing it–but staunch IP advocates would argue that, somehow, I owe the island that duty. In my view, I should not be on the hook, but Friday should be, because he negligently breached his contract with Carusoe and let the information out.

@Keith Hamburger: If Carusoe acted out in the open, I think this should imply that Carusoe did not intend to keep his method private enough to use it effectively as a bargaining chip. Friday should be free to copy the method, but of course Friday should not be permitted to trespass onto Carusoe’s property to spy on what Carusoe has a right to keep a guarded secret.

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Keith Hamburger July 20, 2010 at 9:25 pm

So, if a book is read out loud by the author the copyright no longer applies?

If music is allowed to be played in public then copyright doesn’t apply?

Not everything on which copyright is claimed is kept hidden or distributed with some sort of contract attached to it.

It’s interesting to contemplate where Disney would be (Walt or corp) without using ideas of others. Virtually everything that made Disney what it is was borrowed from someone else and expanded upon. They then take the attitude that their ideas can’t be used by others in the same way the used the ideas that preceded them.

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Tim G. July 20, 2010 at 10:20 pm

It seems to me that the nature of the copyright, essentially, is to assume a contract like this whether there is a contract or not. I don’t believe that assumption should be made. I think authors should make that contract express, and I think they do more cases than one might realize. A little symbol like a “©” or an “®” or a little “CC-BY-NC” is all one really needs to signal the consumer that her enjoyment of the work is subject to certain standard conditions that the she can look up in a library or on the web. In the case of an author reading the book aloud, the copyright notice in the book should suffice, but if it doesn’t, a short notice on the ticket stub will clear up any confusion. With music, you could just say at some point that the material is being broadcast subject to certain conditions. Sports leagues do a wonderful job at making the terms of broadcast painfully clear. At least once a game they recite that rambling disclaimer:

“This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL’s consent is prohibited.”

To me, that reads like a contract. As a condition of watching, they don’t want me to describe or offer accounts of their games without their consent. Those seem like dumb terms to me, but those are their terms. Those who do not accept those terms, should change the channel. If the NFL can state their terms, I think others can, too. Those who do not care enough to offer a statement of terms should not complain when their info is used in some way they do not like.I’d like to hear some opinions on whether the “click-if-you-agree” of “by-reading/watching-this-you-agree” contract is valid. I don’t see why it wouldn’t be, but I’m open to alternative explanations.

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Keith Hamburger July 21, 2010 at 4:52 pm

“assume a contract”???

Like the social contract?

Again, what of music played publicly where anyone that wanders by can hear? Does simply hearing something place a burden upon that person who has been imposed on?

RWW July 21, 2010 at 11:33 pm

By reading this comment, you agree to mail me $10.

Tim G. July 23, 2010 at 3:55 pm

@RWW: Good point!! Duly noted. Remember that contract law seriously considers a party’s intent to be bound, and I think that is a wise policy. I would argue here that by simply reading a standalone term, I have not manifested intent to be bound by that term. The nature of a single sentence is that my relationship to it can not be fully ascertained until I have read and understood it. Therefore, no true intent can be formed during the reading of a single sentence. That argument may not win; it would have to be settled in some sort of arbitration.

@Keith: No. Simply hearing the music would not place a burden on hearer absent any indication that the person intended to be bound, and the hearer should be under no duty to leave the premises. Here, the musician would have to weigh the risks of playing her music, or of allowing her music to be played in public. Generally, people who are truly just wandering by the park are not really listening because they are otherwise occupied. If they decide later on to piece the remnants of their recollections together to form something that could be copied and distributed, it would probably be of such a different quality that it would not even seriously compete with the work of the original musician. The original musician would not only have no recourse, but nothing at all to seriously complain about.

Hypothetically, if George Harrison was walking by a Chiffons concert in the park and overheard “He’s So Fine” being played, and he didn’t really listen, and didn’t consent to any terms, but he was subconsciously influenced to write “My Sweet Lord” when he got home, I would not find George Harrison liable to the Chiffons. But the longer George stays at the park, and the closer George listens to “He’s So Fine” with intent to record his own version of when he gets home, the more likely he is probably to have heard and understood the terms at some point, or saw them on a sign somewhere, and he would be more likely to be consciously violating those terms.

Lastly, there will always be some chance that there is a savant in the audience who will remember the whole performance, note-for-note, without really trying, or that somebody in the park who is not a party to the agreement will be shooting a video of something else and incidentally capture the music. The artist will have no recourse in these situations. If the artist is truly worried about this sort of thing happening, then she must do a better job controlling her environment. Perhaps concerts in the park are not suited to her business model. She should consider renting a hall where she has a better chance of ensuring that everyone within earshot has agreed to the terms.

These cases will be fact sensitive and very difficult to decide. However, that some cases on the margins will be difficult to decide should not prevent the parties intentions from being enforced when those intentions are clear. There is no need to throw the proverbial baby out with the bathwater.

RWW July 19, 2010 at 9:13 pm

In this situation, a kind of contractual “IP” would actually work, since it would be pretty clear whether Friday breached the contract. But trying to apply this idea to a real-world situation — say selling books, for example — seems pretty infeasible to me.

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Sasha Radeta July 20, 2010 at 11:18 am

IP is not contractual – that’s why it doesn’t seem feasible to you. IP only states what property rights rest with the author — while free market contracts (exchanges) may transfer some of these rights to others… Fine difference here: the author does not need a contract to prevent, second, third, or even fourth party from using his good in ways he never explicitly authorized. These exclusive uses are solely his by the very virtue of ownership — no need for contract to achieve such protection.

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Peter July 20, 2010 at 8:20 pm

Aha. I get it: it’s magic!

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Rich Wilcke July 19, 2010 at 8:07 pm

Are we discussing Robinson Crusoe, the island pragmatist, or Enrico Caruso, the Italian tenor? I don’t think the former would have been concerned about IP but it would not surprise me if the latter did.

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Darcy July 19, 2010 at 8:44 pm

The analogy to Crusoe picking berries is flawed. If Friday had agreed that Crusoe owned the trees in return for Crusoe teaching him to pick berries, then he would be violating his property rights if he picked unauthorized berries.

Since only information that requires copying can be copywritten, you cannot obtain the information without infringing the property of the producer. If ideas were what was valuable, then movie piracy would involve watching Inception, then remaking the film on your own cameras with Ronaldo DiLeonardo in your basement. Of course that is worthless, because no one wants the idea. They want the physical information.

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Beefcake the Mighty July 19, 2010 at 8:48 pm

What the hell is “physical information?”

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Darcy July 19, 2010 at 8:57 pm

You need to catch up on your physics, because adding information to physics is now the only way to prevent violations of the second law of thermodynamics:
http://en.wikipedia.org/wiki/Maxwell%27s_demon

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RWW July 19, 2010 at 9:18 pm

…which has precisely nothing to do with the issues at hand, but works nicely as obfuscation.

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jerry July 20, 2010 at 3:58 am

Darcy – ha, someone on my side at last. All though I think IP as it is is an abomination, I have an instictive feeling that I can’t prove yet that the anti-IP theories on this site are not consistent with the laws of thermodynamics. I’m of the opinion that until a theory of property, intellectual or otherwise, is shown to be consistent with these laws and the “you can get work from information” concept, which is best illustrated by Maxwell’s Demon, then it is fatally incomplete. I’m trying to do it myself – it’s harder than I thought though…..

Have you seen any books/places where this is discussed that I might not have seen? The Dover book on information theory by John Pierce (Prof at Caltech) is old but is superb. I’m trying to find more fundamental concepts that a “definition” of property will just fall out of.

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Yair July 20, 2010 at 11:16 am

Jerry,
I think you’re getting a bit ahead of yourself. You have quite a bit of ontological work in order to substantiate your statements. You make the implicit assumption that IP is information; that is not that obvious to me. I have no idea what ideas are and what exactly is their relation to information, and to the best of my knowledge there is no consensus amongst philosophers on this point.

But, even if you do accept a reductionist-materialist ontology, I do not think invoking information theory is even necessary. It is sufficient to assume that all information is given to us by particle physics. Information is simply a pattern of particles with certain relations in a certain position in space/time. But I find this consistent with anti IP approach, because any replication of such a pattern is:
a) never identical to the original pattern, because no two such patterns can occupy the same place in space/time.
b) such a replication is always created by the combination of private property (paper, ink, computers, electricity, neurons…), homesteaded natural resources (particles needed for the sensory reception of the information), and services purchased (telecommunication, internet services…).

None of the above is the property of the original creator of the pattern, and thus replicating the pattern and using it does not constitute any violation of IP rights.

If you support IP, then an interesting idea to explore (though it is quite strange) is to claim that the amount of finite ‘abstract’ patterns is finite, though very large, and as such abstract patterns constitute a scarce resource. Thus, you can claim property rights on specific patterns. But this looks pretty dumb under serious scrutiny because it is hard to show the harm done by copying such a pattern.

In general it is not clear what abstract things (such as patterns) are, hence the need for a good ontological theory to explain their existence and relations to physical matter before building an eliminative theory of IP.

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jerry July 20, 2010 at 11:22 am

“I think you’re getting a bit ahead of yourself.”

I am ahead of myself – I already said, I can’t justify what I “feel”. Maybe I’m wrong, I don’t care if I am. I just want to find the answer. But my instinct right now is that copyrighting “should” be ok, patents not.

RWW July 20, 2010 at 9:34 pm

…to claim that the amount of finite ‘abstract’ patterns is finite, though very large, and as such abstract patterns constitute a scarce resource.

This is not the economic meaning of “scarce.”

jerry July 20, 2010 at 4:22 am

Your Inception comment is right on the money – if I hear one more person say “ideas” are infinitely reproducible like it’s just, you know, obvious, I may go insane. I posted this thought experiment the other day which I’m not very happy with – can you improve on it? I’m trying to work through an everyday (rather than thermodynamics) scenario in which you can do “work” with encoded information and that therefore access to these codes must, at least sometimes, be “prohibited” or “tracked” in some sense – and noting that you need energy to access and copy the code, you can’t just take a glance and immediately know someone’s genetic code. I don’t quite see this 100% clearly yet though.

“As a thought experiment for discussion purposes to elaborate on what I asked, imagine that once you get someone’s dna, then you can do a calculation so that a certain very precise quantity of water, coffee grains, milk and sugar mixed together will kill them, but you need to analyse their dna to get this mixture exactly right.

I make someone a cup of coffee and they die. Did I kill them ie. did I violate this person’s “property” rights? This depends crucially on whether or not I went through a PROCESS of obtaining their genetic code or not – of somehow “copying” their genetic code. And do I need to violate their “property” rights to do this? They left a bit of skin on a glass and I used that – they do this all the time. So did I violate their property rights or not? Am I a murderer? If so, how do we tell?”

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Peter Surda July 20, 2010 at 6:24 am

Did I kill them ie. did I violate this person’s “property” rights? This depends crucially on whether or not I went through a PROCESS of obtaining their genetic code or not – of somehow “copying” their genetic code.

I thought this issue was resolved already. The question whether a property was violated does not depend on intent or sophistication of the method used. It is completely irrelevant what you did with his genetic code. The only thing it might influence is how likely your action would be discovered and what the proper remedy/punishment would be.

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jerry July 20, 2010 at 6:44 am

I understand what you say, but I’m not trying to make the point you think I am – but I admit I can’t quite word the point I can “see” in my head yet.

Put simply though, information can be turned into work, and I mean work in the technical sense of “lifting a weight”, at the most fundamental level. Information transfer is not free – it takes energy to transfer information, always. So, the suggestion that real tangible stuff is one kind of property and information/patterns are another and never the twain shall meet is simply untrue. That being true at a fundamental level doesn’t falsify an anti-IP model, not by a long shot – but I suspect that it does or that it will eventually.

The main reason these debates go round and round is that no’one can really agree on a definition of what “property” is.

In my example, is the piece of skin that the person murdered left on the glass his property or not? Did the murderer violate his property rights by accessing the genetic information in this piece of skin or not?

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jerry July 20, 2010 at 6:47 am

And I should add for clarity that I’m with Rothbard in MES on this (I’m sure that’s a load off for him). Patents are nonsense but copyrighting is something different and makes sense when it can be tracked to transfers of physical goods between individuals.

Peter Surda July 20, 2010 at 7:04 am

The main reason these debates go round and round is that no’one can really agree on a definition of what “property” is.

Indeed, this is my main concern. My point is that I wasn’t able to find a proper, scientific, definition of IP, and apparently neither can IP proponents. Obviously, absent a definition, the theory is not even false, it does not even exist, and we are forced to accept a different one. One that is possible is the one that I am proposing, that bases the homesteading or trespass of the property on changing the said property.

So, the suggestion that real tangible stuff is one kind of property and information/patterns are another and never the twain shall meet is simply untrue.

If you phrase it like this, I agree with you. I phrase my arguments without invoking this.

In my example, is the piece of skin that the person murdered left on the glass his property or not?

That depends on many things, such as customs, environment, contracts existing among the victim, the attacker, the owner of the glass, owner of the premises where it happened, and so on. None of it requires a specific constellation of rights though.

jerry July 20, 2010 at 7:20 am

“That depends on many things, such as customs, environment, contracts existing among the victim, the attacker, the owner of the glass, owner of the premises where it happened, and so on. None of it requires a specific constellation of rights though.”

So should I sign a contract with every shopkeeper before I enter his shop that any hairs or skin that I leave behind he must not use? SHould I wrap myself in an airtight astronaut suit before I leave the house? Picking out apricots at the grocers will get tricky.

Such actions take time and energy and are a claim on what we agree are scarce resources. So, there is a cost to NOT monitoring the access to this information in some way.

If you can track the information flow via “real” stuff, then these costs could be overcome. Could, not necessarily. It is not obvious to me that people shouldn;t be able to choose to do so by restricting the use of a good that they sell in a voluntary contract with the buyer.

As stated above, if someone shows you the movie Inception, you didn’t repeat it yourself on your own set, you at some point copied a piece of film/dvd which was either bought or stolen (you could in theory, but not in practice). It can be tracked to the movement of physical goods.

Peter Surda July 20, 2010 at 9:51 am

So should I sign a contract with every shopkeeper before I enter his shop that any hairs or skin that I leave behind he must not use?

The answer is: it depends. It is possible that when such a threat becomes actually relevant, customs would change so that an explicit contract on your part would not be necessary, rather the restriction would follow from the preceding steps, such as when the land for the bar is being sold. There is no way to know in advance what sort of risks would be caused by developments in our knowledge and technology. However, what I would like to reiterate that none of this has an effect on the final property rights violation. It is a long stretch to claim that by leaving a fleck of skin on a glass, you consent to being killed. Indeed, it would be quite unusual and I doubt anyone would be persuaded by that.

If you can track the information flow via “real” stuff, then these costs could be overcome.

I don’t understand why this should have an effect on the scope of property rights.

As stated above, if someone shows you the movie Inception, you didn’t repeat it yourself on your own set, you at some point copied a piece of film/dvd which was either bought or stolen (you could in theory, but not in practice). It can be tracked to the movement of physical goods.

I think we are talking about a separate things. I do not deny that there is a causal relationship between an original and a copy, and that for certain purposes they are similar enough (substitutes). What I however wonder is that why these two conditions should be relevant for determining a property rights violation, since causality extends to infinity and similarity is subjective.

jerry July 20, 2010 at 10:59 am

Peter, you said (elsewhere):

“So if I promise to stay still for a hour, which does not involve an exchange, such a contract is not enforceable? Or, alternatively, does it mean that someone has a property claim on “movement” or “one hour”? I am sorry, this makes no sense at all. Exchange of property is not a necessary component of a contract. In fact, property is not a necessary component of a contract either.”

Can we recalibrate please – I’m not sure what our disagreement is now.

Copyrighting means that: I sell you a cd with some software on it and part of the contract is that you are not allowed to “copy” this executable file and store it in any other form, say. That is, you can’t copy it “by magic” – there is a process that you have to go through to copy this exe. You agree not to perform this process and so I sell you the software.

If you make a copy and sell it or pass it to someone else, I can sue you for damages. If you don’t, I can be sure I can make a sale to your friend who wants one also because he won’t get it from you.

Do you have a problem with this? Is your problem that “copy” is not well defined and is subjective?

Peter Surda July 20, 2010 at 11:59 am

Dear jerry,

Copyrighting means that ….

Do you have a problem with this? Is your problem that “copy” is not well defined and is subjective?

The only “problem” I have with your description is that it does not describe copyright, it describes contracts. Copyright is when you want to apply this restriction to people who have not agreed to it. Copyright is the analogy of trespass when applied to immaterial goods, rather than a contract violation. So, in this case, if the other party violated the contract and gave a copy to a third party, you would be able to demand the damages from him, but, absent contract, there is no way for a legal recourse against the third party (maybe if you demonstrated collusion).

Is your problem that “copy” is not well defined and is subjective?

In a way, yes. If two people voluntarily agree on a restriction on copying, it does not matter whether the concept of copying is subjective or objective. They can arrange whatever conditions they like, or even refer to a third party standard. It kind of matters though if you want to apply it to someone who has not agreed to such a restriction.

jerry July 20, 2010 at 12:13 pm

But in that case, the third party received “stolen” goods. If we allow that, we may as well forget the whole thing.

RWW July 20, 2010 at 9:38 pm

But in that case, the third party received “stolen” goods.

Talk about begging the question!

Peter Surda July 20, 2010 at 10:12 pm

But in that case, the third party received “stolen” goods.

This requires to solve the problem of identity of immaterial goods (the issue of causality stretching to infinity and similarity being subjective, or to phrase it differently, issue of boundaries of immaterial goods). Until that is solved, saying they received stolen goods is a metaphor. A more accurate description is that they benefited from a breach of contract.

I have been been attempting to create a theory of identity based on falsifiable theories. We have two things, A and B. We have a question: are they distinct, or are they the same? I was able to come up with a falsifiable theory for the first condition (based on change), but not for the latter one. If we change A, but B doesn’t change, it means they are distinct (the only assumption being that if they are separated by time, A is earlier, otherwise we just switch the labels). If on the other hand, changing A also changes B, we cannot conclude that they are the same. Correlation does not imply causality. This is why I consider the theory of identity of immaterial goods unscientific. It is not falsifiable. Also, of course, because they are unchangeable.

Let’s say we want to determine if two cows are in fact the same cow. We kill (crude but effective) cow A. If cow B is still alive, they are distinct. If however cow B dies too, we can conclude nothing.

jerry July 21, 2010 at 3:04 am

“But in that case, the third party received “stolen” goods.

Talk about begging the question!”

Yes, well I obviously put stolen in quotes to show that I appreciate it needs to be ironed out. What exactly is the point of your comment? Are you entering the debate or not?

jerry July 21, 2010 at 5:38 am

“This requires to solve the problem of identity of immaterial goods (the issue of causality stretching to infinity and similarity being subjective, or to phrase it differently, issue of boundaries of immaterial goods). Until that is solved, saying they received stolen goods is a metaphor. A more accurate description is that they benefited from a breach of contract.”

If you hire a car or rent a house and try to sell it to me, we have evolved reasonable steps I am obliged to go through to ensure that you are the owner of this car/house. If I don’t, then when there is an investigation later, I will have to give it back to its rightful owner and can then only sue you for damages if I lost money.

In the case of an engineering drawing, say, it is not the mere possession of a piece of paper with the drawing on that is the “offence” – it is the process by which you obtained it, ie. the analysis is “path dependent”. If you glance at it while it’s being read in a café and can reproduce it from memory, no’one can reasonably say you “stole” it (this would be my working DEFINITION of an “idea” and an idea would not and could not be protected). But if you need a copy of something in your possession to put it through some process (which is sufficiently well-defined as to be prohibited by the contract of sale) in order to reproduce the information contained therein (and information in this sense can I think be rigorously defined) then the process by which you obtained this copy is then examined – and if you “benefited from a breach of contract” and never took whatever steps the market obliges you to, then you committed an offence in reproducing this information.

What if you are obliged under the contract to keep it from public domain, and then you “accidentally” read it by the window of your house while your friend happens to be cleaning the windows as a favour and he takes photos with the camera he happens to have in his hand? This would be an edge case requiring some interpretation but if tricky edge cases stopped us we’d have no laws of any kind ever.

“I have been been attempting to create a theory of identity based on falsifiable theories. We have two things, A and B. We have a question: are they distinct, or are they the same? I was able to come up with a falsifiable theory for the first condition (based on change), but not for the latter one. If we change A, but B doesn’t change, it means they are distinct (the only assumption being that if they are separated by time, A is earlier, otherwise we just switch the labels). If on the other hand, changing A also changes B, we cannot conclude that they are the same. Correlation does not imply causality. This is why I consider the theory of identity of immaterial goods unscientific. It is not falsifiable. Also, of course, because they are unchangeable.

Let’s say we want to determine if two cows are in fact the same cow. We kill (crude but effective) cow A. If cow B is still alive, they are distinct. If however cow B dies too, we can conclude nothing.”

My guess is that what you (and most people commenting on IP on this site) are trying to do is impossible. There is no “general theory of property” – property is not I suggest definable from what you would call in physics (and truly unfortunately named) “properties” of the system, where a property is something that depends only on the state of the system and not on the “path” through which the system arrived at that state.

I think property we generally use it and as you want to define it requires a path dependent definition whereas everyone always tries to provide/use a path independent definition – and this is why no’one can agree on what “property” is.

Trying to do analysis without first identifying the “properties” of the system (that is, those variables which depend only on state and not path) first is in my view the first entry on the common mistakes page of the system analysis manual, and guarantees circular confusion. But I admit I’d have to think about all this more for it to be any more than the instinctive guess it is now.

Peter Surda July 21, 2010 at 7:00 am

If you glance at it while it’s being read in a café and can reproduce it from memory, no’one can reasonably say you “stole” it …
[cut]
But if you need a copy of something in your possession to put it through some process … then you committed an offence in reproducing this information.

Why? If I was a genius that can grasp complicated formulas in a fraction of a second, or had a super-resolution camera that allowed me to reconstruct the contents of a DVD just by taking a picture of it from a neighbouring table, what then?

… information in this sense can I think be rigorously defined …

We might be able to define information, but we cannot define with 100% accuracy the mapping between a physical object and information. Maybe this is badly phrased, let me try again: there is more information in an object than you the information purposefully “put” there. The amount of information might not be infinite, but it is a subset of all possible permutations on object with intended specifications might contain. According to my rough estimates, one bit of DVD contains about 125 billion (US billion) atoms. If you “copy” a DVD then, you copy less than 1/125billionth of the information from it. If you get one byte (excluding error correction), it is approximately 4.7 billion times less. Which of these are relevant?

What if you are obliged under the contract to keep it from public domain, and then you “accidentally” read it by the window of your house while your friend happens to be cleaning the windows as a favour and he takes photos with the camera he happens to have in his hand? This would be an edge case requiring some interpretation but if tricky edge cases stopped us we’d have no laws of any kind ever.

I still see no problem here. You broke a contract (albeit unintentionally), but why should there be any claim on your friend’s actions?

My guess is that what you (and most people commenting on IP on this site) are trying to do is impossible. There is no “general theory of property” – property is not I suggest definable from what you would call in physics (and truly unfortunately named) “properties” of the system, where a property is something that depends only on the state of the system and not on the “path” through which the system arrived at that state.

But if there isn’t, then what’s the point? Then we can define the property arbitrarily.

I think property we generally use it and as you want to define it requires a path dependent definition whereas everyone always tries to provide/use a path independent definition – and this is why no’one can agree on what “property” is.

I would rather recommend that unless proven otherwise, we will assume that there is a neutral way of defining property, and we attempt to discover it.

Trying to do analysis without first identifying the “properties” of the system (that is, those variables which depend only on state and not path) first is in my view the first entry on the common mistakes page of the system analysis manual, and guarantees circular confusion. But I admit I’d have to think about all this more for it to be any more than the instinctive guess it is now

You are probably right on this. I’m trying to mitigate this problem by questioning all my assumptions and eliminating unneeded ones. That is why sometimes my questions or claims appear weird: they are the outcome of an eliminative process rather than inductive reasoning.

iawai July 20, 2010 at 12:39 am

After Roderick Long’s Lecture on the Pros and Cons of IP at the IHS seminar I’m currently attending, many rising philosophers, economists, and other liberty lovers started to think long and hard about the justness of IP.

Not many of these people would think that the Shire Society has done anything contrary to L. Neil’s rights, as his production costs of his DOUC have already been recouped and never was there an improper “theft” (e.g. the work wasn’t lifted from a secured place). I will be greatly amused if this “affront” is what acts as the impetus for L. Neil to change his mind about IP.

As an aside, the biggest particular issue many people seemed to have was not with the copying or alteration of written works, but of recouping pharmaceutical research costs without IP. Certainly this is a utilitarian argument, though it presents a very practical problem. The best solution that was brought up would be that health insurers would have an interest in developing the cures, and could fund research in exchange for agreeing to only use that particular developer’s result so that generic copies may still arise, but the researcher has contractual protection against these generic market alternative for some time.

In the end, my initial position of anti-IP was picked up by quite a few libertarians and most others are now at least IP-skeptics. BTW, Stephan’s AIP was listed as recommended reading, and the link to the free pdf hosted here was given to the group of students. I hope many others soon discover the great benefits of mises.org and open publication in general.

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Mises Daily July 20, 2010 at 7:54 am

The pharm issue is complicated by mandatory disclosure requirements of the FDA.

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Curt Howland July 20, 2010 at 8:13 am

Iawai,

Indeed, the arguments that I’ve seen have been utilitarian. Pharmaceuticals, but also books, plays, and especially big Hollywood movies.

But like proving a negative, all it comes down to is assertion.

Even though we all live in an environment of copyright, stories, books and movies get made by people who deliberately place their works outside of copyright protections. Ever read a good fan-fiction? Heck, I know one that is actually better than the original!

Maybe, without the monopoly prices that can be charged with the monopoly grant that is copyright, some books and movies won’t be made. But others will, as authors find they can build upon the works of others without hesitation or fear.

So we lose the likes of “Waterworld”, but gain the likes of “Variations On A Theme By Paganini”.

I think humanity will do just fine.

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Stephan Kinsella July 20, 2010 at 10:28 am

Roderick’s talk is heroic, but unfortunately, IHS seems to be doing what they can to restrict ideas to a select few. This is horrible. Roderick mentioned on his blog that they demanded he take down the schedule of lecturers, and also that they would not make the lectures public (or presumably record them or make them available online). I don’t get this. They could leverage all this and spread these ideas. Instead they are keeping it cloistered and hidden and restricted to a handful of people for an ephemeral moment in time, instead of offering it free to the world so the ideas live and can be seen by thousands. Maybe the money behind IHS is against the IP revolution, and doesn’t want to promote it too openly. Who knows. But I do believe groups devoted to the spread of ideas and information are going to become marginalized if they don’t do something like what Mises Institute has done: let your ideas out there, let them live, share them with people.

And increasingly you are going to have a hard time finding lecturers who won’t have their work recorded and put online. As an example–I used to turn down radio interview requests, for example, in the old days, for small operations–why waste an hour of my time for 3 listeners? But now, I do it more readily, since most of them podcast it. So even if they have a small audience, I produce a growing addition to a media library that can be put online and seen anytime by anyone for free. Leverage.

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RWW July 20, 2010 at 9:42 pm

Roderick’s talk is heroic…

As a joint owner of the English language, I wish you would stop devaluing the word “heroic,” which is, after all, my property as much as yours.

(See also here.)

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iawai July 21, 2010 at 2:10 am

One justification for not wishing to be recorded (as put forth by another attendee of the conference, but not explicitly by any lecturer or organizer) was a sense of being able to be forthright and not mince words amongst a crowd of persons already sympathetic to the ideals of liberty/classical liberalism without fear that those remarks would be used against them in their professional career. Certain uses of the term “anarchism,” for example, even in the schedule of lectures, may doom certain professionals to not be able to continue productive activity in seeking liberty.

Further, as the lectures are by invitation and conducted in private, it is perfectly within the rights of the organizers to request a certain level of confidentiality from the voluntary participants.

There may be a debate over whether the tactic is effective on net in spreading the ideas of liberty, but such a debate is purely over the management of a firm. The Mises Institute business model is a direct to the consumer product that exposes the ideas, warts and all, in reproducible digital format; IHS’s is more of a “managers conference” that seeks to distill a high literacy of the ideas to those who will in turn lead others to liberty by being a leader in their profession and will develop the ideas further. Maybe the IHS would benefit from following the Mises Institute’s business model, but I think the leaders of both agree that only the market can determine the effectiveness of either.

And this says nothing about how the lecturers choose to distribute their own polished work online; a few times the lecturer explicitly announced that the specific lecture he was giving was available in print on his web page.

I understand the felt uneasiness that the IHS is restricting access to their material, and could write more on the topic, but I must sleep before I attend another of these lectures at 9:00amEST tomorrow.

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Sasha Radeta July 20, 2010 at 1:20 am

I am deeply saddened to see more anti-IP hysteria and waste of space in this blog, once again discrediting Mises.org. Mr. Tucker said:

” Yes, the farmer owns the land. Yes, the writer owns the page and screen. The farmer, however, does not own the idea of plowing and planting. Nor can the writer prevent others from arranging letters and words in a particular way because he somehow owns the ideas expressed on his paper.

Mr Tucker demonstrates a common confusion with IP: it does not imply ownership of idea. IP deals with exclusive ownership rights of authors to control or to allow certain limited uses of their property. Just like a farmer can allow other person to occupy its land, while at the same time retaining the exclusive rights to use this land for any commercial activity — so can the writer allow (for a small fee) the other person to use his book-copies in strictly non-commercial fashion, while retaining all other uses of this property. The fact that this customer or a third party cannot just assume rights to republish this property (without owner’s consent) often confuses people into thinking that this demonstrates ownership over a pattern or idea.

Mr Tucker even repeated his Robinson Crusoe example – but this is a typical straw-man tactic. If you ever bother to read copyright law, you will see that it never claims ideas per se can be owned. IP simply enumerates exclusive ownership rights, stipulating what the owner can do with his property — and stating that only owner of these rights can allow others to assume them. In other words, you can always bypass any IP protection by paying the fair market price for full ownership over any item. The issue arises when you pay only few bucks for limited, personal use — and then claim you have the right to act as a publisher or owner.

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Bala July 20, 2010 at 1:28 am

” Mr Tucker demonstrates a common confusion with IP: it does not imply ownership of idea. IP deals with exclusive ownership rights of authors to control or to allow certain limited uses of their property. ”

I find this statement of yours confusing. As I understand it, if it is not “owned”, it is not “property”. If it is not your “property”, you have no locus standi to control or allow certain limited used of the said object.

So, if it is not owned, how does it become “property”? What is the “property” that you are referring to?

” so can the writer allow (for a small fee) the other person to use his book-copies in strictly non-commercial fashion, while retaining all other uses of this property. ”

I can understand it if you say that the book before sale is the author’s “property”. How does it remain the author’s “property” after the sale? How do the copies become the author’s “property” so that he may limit the uses those may be put to?

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Kerem Tibuk July 20, 2010 at 6:21 am

“I can understand it if you say that the book before sale is the author’s “property”. How does it remain the author’s “property” after the sale? How do the copies become the author’s “property” so that he may limit the uses those may be put to?”

Clearly you have never rented anything in your life and you have also never met the concept?

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Bala July 20, 2010 at 10:20 pm

I have. But I am not in the habit of treating a “sale” as an act of “renting”. A sale is a sale and renting is renting. I am not insane to claim that a sale is renting out.

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Sasha Radeta July 20, 2010 at 2:05 am

Bala,
Everything you wrote is based on the fact that you deny owner’s right to allow/sell/rent only limited use of his property, while retaining all other kinds of uses (ownership rights). For you, it is irrelevant whether you pay few bucks for limited kind of use — or pay millions for publishing rights. What’s sold – is sold, right? Concept of selling services derived from one’s property (like rent or labor) is not within your grasp.

Thanks for so authentically demonstrating my point about the confusion of anti-IP crowd.

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Jay Lakner July 20, 2010 at 2:33 am

I have no problem with a contract whereby the physical book remains the property of the author and the buyer has limited uses of the book. However, you can only place limitations on how the buyer can alter the physical integrity of the book.
You cannot place limitations on what the buyer does with his own things. That’s slavery.
Such a contract would be invalid.

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Sasha Radeta July 20, 2010 at 5:03 am

Jay,
It’s not slavery when you place a limitation on how you want your own property to be treated or used by others. It’s basic ownership right. Slavery is using force or threat of force to make someone perform labor. Nobody’s forcing you when they insist you keep to the services you purchased – and not try to get more of another person’s property.

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Peter Surda July 20, 2010 at 6:29 am

It’s not slavery when you place a limitation on how you want your own property to be treated or used by others.

Of course, this sentence alone is correct, but applied to the original problem it requires two things: you need to define IP, and you need to prove it is a justified concept. Neither of which you have, and based on the progress so far I don’t think it’s likely to happen. As IP theorists horribly fail on the former one already, I’m not really concerned about the latter one.

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Sasha Radeta July 20, 2010 at 7:47 am

For definition, consult Wikipedia. For justification, read more carefully or give up.

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Sasha Radeta July 20, 2010 at 7:53 am

Peter,
for definition of IP, use any one you want. In absence of books, use online resources. For its justification: read my postings more carefully.

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Peter Surda July 20, 2010 at 10:42 am

for definition of IP, use any one you want.

Then provide me a scientific one. The one from wikipedia isn’t.

For justification, read more carefully or give up.

Before the issue of definition is resolved, the issue of justification is moot.

Keith Hamburger July 20, 2010 at 8:38 pm

Even moreso, Sasha keeps using the word “property” but has in now way proven that ideas/writing/music or whatever IP covers remains the property of the initial creator once it has been released to the public. Whenever any form of intellectual property is taken from the creator’s mind and placed on paper or performed or whatever it has been sent out into the wild. Sasha needs to show that when that happens, somehow, without invoking legislated law, that idea remains the property that it is claimed to be.

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Sasha Radeta July 21, 2010 at 7:38 am

Keith, you’re not even reading my postings. I keep writing about physical property (not some imaginary idea ownership) and kinds of use that owners (authors) allow to general public. Read more carefully, or check for ADD.

Keith Hamburger July 21, 2010 at 4:53 pm

IP doesn’t cover physical property. Physical property is covered by other laws. So, I guess I don’t know what the hell you’re talking about here. And, it appears, neither do you.

Peter Surda July 20, 2010 at 6:04 am

However, you can only place limitations on how the buyer can alter the physical integrity of the book.

I humbly beg to differ. There is no reason to make this assumption. Rather what is relevant here is that the restriction is only applicable to third parties if the object of said restriction is covered by property rights.

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Sasha Radeta July 20, 2010 at 7:55 am

Restriction is applicable to all parties if these ownership rights were never relinquished by the copyright owner.

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Peter Surda July 20, 2010 at 10:43 am

Restriction is applicable to all parties if these ownership rights were never relinquished by the copyright owner.

The applicability to third parties requires underlying property rights. You add additional assumptions into the argument and confuse the issue.

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Jay Lakner July 20, 2010 at 5:11 pm

Peter Surda wrote:
“I humbly beg to differ. There is no reason to make this assumption.”

As usual Peter, you are right.

I was in a rush and quickly threw down that post. As I was leaving I realised that what I wrote was incorrect. But it was too late.

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Peter Surda July 20, 2010 at 10:48 pm

No worries.

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Bala July 20, 2010 at 3:17 am

” Everything you wrote is based on the fact that you deny owner’s right to allow/sell/rent only limited use of his property, while retaining all other kinds of uses (ownership rights). ”

Wherever did I deny any rights of the owner? I just asked a simple question. I was confused by your post and asked for a small clarification. You said

” it does not imply ownership of idea. ”

and then said

” IP deals with exclusive ownership rights of authors to control or to allow certain limited uses of their property. ”

I just wanted a clarification on what the “property” you are referring to is. That’s all.

I am unable to understand how when a book is sold by A to B, A still retains the right to restrict B from doing specific things with his book. I am confused as to whose property the book is.

” Concept of selling services derived from one’s property (like rent or labor) is not within your grasp. ”

Now!!! You are being extremely mean. I just wanted to know what the “property” is that you are referring to all over again in this statement. I repeat…. I am confused as to how you can sell a book to me and still claim to own it. Please clarify what the words “sale” and “sell” mean. Once a book is “sold”, who “owns” it? The seller or the buyer? Why stop at a book? When a car is sold, who owns it – the buyer or the seller? Whose “property” is the object in each case?

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Sasha Radeta July 20, 2010 at 5:08 am

Bala,
you make no sense, again. When you pay say $14.99 — full ownership of book is not sold. You only purchased a strictly limited service from the author or publisher. This service represents a strictly limited, non-commercial use of THEIR book. If you decide to obtain publishing or full ownership rights (also available on the market) that would cost you a lot more money… but you would have no reason to complain about copyright. All you got to do is to pay the market price for full book ownership, not just pay few bucks to get an access to it. I hope this answered it.

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Peter July 20, 2010 at 5:41 am

You’re missing the point again. If you pay $14.99 for the book and “full ownership is not sold”, then what is it that is not sold? You claim that you’re not talking about ideas but only about physical goods being bought and sold, but the only physical good involved in this transaction is the book–so you’re either saying that the book isn’t really sold when it’s sold, or you’re talking about property in ideas again, just as Bala points out.

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Sasha Radeta July 20, 2010 at 5:49 am

Peter,
For $14.99 you can only buy a service from the book’s owner: a limited, non-commercial use of this owner’s property. Publishing rights would cost a lot more. Is it so difficult to realize that ownership of any copyrighted book is readily available — if you pay its market price, not $14.99 for personal use!? You never hear those who pay the fair price for publishing rights ever complaining about the copyright – because they can copy all they want. Regards,

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Bala July 20, 2010 at 6:14 am

” For $14.99 you can only buy a service from the book’s owner: a limited, non-commercial use of this owner’s property. ”

As I understand it, for $14.99, I have bought a book. The book is now my “property”. I am now its owner. How can the original “owner” now prevent me from doing with the book as I please? What part of my book does he still own? What is the nature of his “property right” that makes it alright for him to restrict the use of my property?

If I now make multiple copies of this book, each of those copies is made up of my property, be it paper, ink, glue, string….. whatever it takes to form the sheets into a book. I now distribute the copies for free. I am in effect giving away my property for free. On the other hand, I scan the book and make it available as a .pdf file for anyone to download for free.

As I see it, there is no commercial purpose in either case. Strictly speaking, it is a non-commercial purpose. Do you still find it objectionable? What “property right” am I violating by making copies and distributing them for free?

” you make no sense, again. ”

Oh!! That’s probably because I am not trying to “make sense” the way you use it. The only “making sense” I am engaged in is trying to make sense of what you are saying. I am just asking questions to which I hope you will give answers.

Kerem Tibuk July 20, 2010 at 6:40 am

Playing semantics when you tun out of ideas eh?

You are fixated on the concept of “buy” and why is that?

Is it because you take the meaning as “gaining full ownership”?

“As I understand it, for $14.99, I have bought a book.”

If you mean by “bought” you have full sovereignty over the book, no you haven’t bought it.

” The book is now my “property”. I am now its owner.”

No you are not. You are someone who rented the book. On certain conditions.

“How can the original “owner” now prevent me from doing with the book as I please? ”

There is no “original owner” there is one owner and you are not it. You are the renter and you made a conditional exhchange based on a contract. And let me add before the classic “aha” moment, the ones that have not agreed to an exchange contract are not part of any exchange and thus their every involvement is a tresspass.

When you rent an apartment on certain conditions you make a contract. You have to honor that contract. And this doesn’t mean some other person who is not part of a contract regarding that apartment can do anything he pleases with the apartment. If he uses the apartment he is trespasser.

IP Socialist that are using the “third party to a contract argument” do not know what contracts are. Contracts are promises regarding a conditional exchange of property. If there is no exchange contracts are meaningless.

“What part of my book does he still own?”

It is not your book. You just rented it conditionally.

“What is the nature of his “property right” that makes it alright for him to restrict the use of my property?”

He is not restricting the use of your property. You can easily drive your own car wherever you want and eat the food you own. Oh but when you say he restricts the use of your property you mean you are talking about the use of his property right? You are still a little confused about what is whose.

“If I now make multiple copies of this book, each of those copies is made up of my property, be it paper, ink, glue, string….. whatever it takes to form the sheets into a book. I now distribute the copies for free.”

If those actions are prohibited by the contract of the property exchange you are breaking the contract and you are aggressing against the property owner. If you are not part of a contract, you are trespassing involving yourself with someone elses property without his consent, and that too is aggression.

“I am in effect giving away my property for free. ”

You can do whatever you want with your property. Again you can give away your car, you can give food to whoever you want. Nobody is restricting you regarding your property. Oh but you mean you want to give away what doesn’t belong to you right?

” What “property right” am I violating by making copies and distributing them for free?”

You are violating contract regarding the conditional exchange of property. Again, if you are not part of any contract, you are violating property rights by “trespassing”.

David J July 20, 2010 at 3:10 pm

If one owns a book, they have the legal right to sell, give away, or destroy it, if they wish. That’s more than the “service” rights you refer to.

Peter July 20, 2010 at 8:26 pm

” The book is now my “property”. I am now its owner.”
No you are not. You are someone who rented the book. On certain conditions.

So if I “buy” a book and throw it in the fire, I’m also guilty of theft, right? I only rented the book; it’s not my property, therefore I have no right to burn it. Do you agree with that?

Bala July 21, 2010 at 1:00 am

” Playing semantics when you tun out of ideas eh? ”

It is interesting to note that you cannot see the difference between “asking for definitions” and “semantics”. It is all the more interesting to see that you are unable to appreciate the importance of properly defining the terms being used in the discussion. Maybe it helps you switch between definitions and confuse your opponent, but that does not constitute honest debate.

But then, it is precisely because I judged you as a dishonest opponent that I had earlier decided not to engage you any more. So I guess I just have to stick to my earlier decision and refuse to engage you.

Bala July 20, 2010 at 6:39 am

” full ownership of book is not sold ”

What is “full ownership”? What have I not bought when I paid $14.99?

That apart, let’s trace the chain of events that led to my coming to be the owner of the book in question.

Author writes a book. He approaches a publisher with a draft copy of the book. In fact, that is the book. The publisher agree to publish and distribute the book. What does the author sell to the publisher? What does he not sell? If the publisher prints copies using his materials and equipment, which part of the copies is not his “property”? Further, which of these is the author’s property? The original book or the copy made by the publisher? Which one are you repeatedly referring to as the author’s property?

I now buy one such copy from an authorised dealer. Whose property was the copy just before I bought it? Am I buying it from the dealer or from the author or from the publisher? At the end of this transaction, how does the author get to “own” any part of the book which is my property? Or are you saying that that the copy I bought is not my property?

I may still not be making sense but I am still trying to make sense.

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Sasha Radeta July 20, 2010 at 7:19 am

Bala,
As I repeated like dozen of times, for $14.99 you only purchase a service of limited use of someone’s book. It doesn’t matter how you understand it — market price for full ownership is much higher and you would never be able to prove that the author transferred any ownership rights to you. With this book you cannot do whatever you please (as you insanely asserted), because you obtained only limited use of this property that does not include its commercial use, republishing, etc. Since the book owner retained the exclusive right of replication of this book (copies are his only), you would not only be liable for economic injuries created by your trespass or production of unauthorized copies – but also any other third party that decides to republish copies obtained from you – without the consent of the book’s owner.

Now coming to issue of publishing: publisher may obtain different kinds of rights from author: they may be full ownership over a book, maybe co-ownership with the author – or just right to do a limited number of copies that belong to author… Either way, these rights would cost lot more than say $14.99.

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Keith Hamburger July 20, 2010 at 8:40 pm

Ownership implies property, property implies ownership. If I overhear someone playing music that was created by someone else, how does that someone else retain any sort of ownership or property right such as to allow a claim against me?

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Peter Surda July 20, 2010 at 6:01 am

Everything you wrote is based on the fact that you deny owner’s right to allow/sell/rent only limited use of his property, while retaining all other kinds of uses (ownership rights).

The same elementary logic error, same one as I complained elsewhere, and which to date you didn’t get. You conflate the ability to put restrictions into a contract (which do not require property), and the applicability of restrictions to third parties (which require property, more specifically trespass). These need to be addressed separately, otherwise people end up with nonsense just like you.

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Sasha Radeta July 20, 2010 at 7:43 am

Peter, stop demonstrating your ignorance: any unauthorized use of other person’s property is trespass. It may or may not be connected to breach of contract. Nonsense comes from anti-IP tolls trying to advocate trespass, claiming that only contractual parties need to respect author’s ownership rights.

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Peter Surda July 20, 2010 at 10:33 am

It is you who demonstrates ignorance. Of course, unauthorised use of property is trespass. But acting in spite of a restriction you did not agree to is only trespass if the object of the restriction is covered by property rights. The implication does not work the other way. Elementary logic, not understood by religious nuts.

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Jay Lakner July 20, 2010 at 5:39 pm

Sasha seems to be under the opinion that when you buy a book you become a co-owner of the book with the author. The terms of use are that you may not copy the book.

If the book becomes lost, then the author and buyer are still the most rightful owners of the book. Any third party who takes possession of the book is not the most rightful owner of the book and may not do whatever they want with it.

If the buyer no longer wants his share of ownership of the book, then he may only dispose of it in a manner consistent with the terms of use of co-ownership.

Sasha does take an interesting position. He seems to be suggesting that copyright does not grant ownership in patterns but is merely a blanket term for these co-ownership agreements.

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Bala July 21, 2010 at 12:24 am

I knew that that’s the way he thinks. I just wanted to bring it out in the open. That’s why I worded my questions the way I did.

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Bala July 21, 2010 at 12:40 am

” stop demonstrating your ignorance: any unauthorized use of other person’s property is trespass. ”

Conversely, it is trespass only if it is unauthorised use of another person’s “property”. For that, the object in question has to be another person’s “property” in the first place. That is why my question to you (repeatedly) is how the copy I have bought becomes the author’s property. What is it in that copy that I have not bought as a result of which my act of making a further copy is to be judged as an act of “trespass”?

” Nonsense comes from anti-IP tolls trying to advocate trespass, claiming that only contractual parties need to respect author’s ownership rights. ”

What are the author’s “ownership rights” in my copy and how does the author get those “ownership rights”? Please answer this question without reference to Copyright Law because that would make your explanation circular or an example of positive law.

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Jay Lakner July 21, 2010 at 1:01 am

Sasha only has two possible replies to this.
He can either acknowledge that the contractual arrangement does not apply to third parties or he can make the claim that the intangible qualities of the work in question are the property of the author.

In other words, he can agree with us that copyright should not apply to third parties or he can align himself with the usual pro-IP position that patterns and ideas can be owned. Either way, his position on copyright breaks down.

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Bala July 21, 2010 at 1:36 am

” or he can make the claim that the intangible qualities of the work in question are the property of the author. ”

Trust me. This is what it will come down to. I am just nudging till we get there. Contract enforcement or imposing penalties for contract violation do not require Copyright Law. Contract Law should suffice.

Sasha Radeta July 21, 2010 at 7:47 am

Jay, please stop replying in my name. I know that you would love me to say that “intangible” is property, but that’s your wishful thinking. I keep insisting that rightful owner of copies can never become a trespasser or a third party that gets endowed from such trespass.

Bala July 21, 2010 at 8:05 am

” I keep insisting that rightful owner of copies can never become a trespasser ”

Oh!! That’s interesting. Just 1 question. If I buy a copy of a book at a store, do I become the rightful owner of that copy? If I now make a copy of that copy, am I innocent of the crime of “trespass”? Am I then innocent of “property rights” violations?

Peter Surda July 21, 2010 at 1:10 am

Nice one, both of you (Bala & Jay).

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Baten July 20, 2010 at 2:13 am

If the author of a book still retain some “property” in the book I have just bought, then this means that there is a way for him to reclaim this “property” whenever he pleases.
How does he do that?
How can an author tell somebody : “Hey, you know the book you bought 25 years ago from me? Well, the content inside is mine, and I want it back! Or else…”

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Sasha Radeta July 20, 2010 at 5:17 am

Baten,
If property owner sells you a service of accessing his property for strictly limited, non-commercial use, without stipulating or implying any expiration date – how in the world he could decide to cease to provide this service to you after 25 years?

Owner cannot lawfully rob you from a service for which you pay a fair market price — just like you can’t lawfully rob this person by taking ownership rights or services that you never paid for. These publishing rights often cost a lot of money (that is one big part that stimulates creative people to create).

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Ralf July 20, 2010 at 4:35 am

Perhaps a reasonable solution would be to protect a writer’s (or inventor’s, architect’s, etc.) intellectual property rights before he sells his work to a publisher (or a producer, developer, etc.) and then the items produced and marketed could be copied freely by everybody, while the first marketer would take the benefit of being the first in the market with this kind of product. The problem is that even such a solution needs some legal protection of the “pattern” (“idea” or whatever you call it). Otherwise how, for example, an author can have any confidence in showing his work to publishing houses when they can refuse to enter into a contract with him and then publish his work paying him nothing. With no protection of “intellectual property rights” such an act would be perfectly legal. All the received materials would be properly returned to the author and nothing would be “taken” from him.

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Sasha Radeta July 20, 2010 at 5:25 am

Ralph,
Being first in the market is no advantage when you try to sell an input (say book manuscript) for goods and services, which price will literally go down to zero (market flooded with unauthorized copies from which original owner does not get a dime). No investor is foolish enough to do invest in mass production of such good. Realistic scenario is that only few ideas worth a fortune would find their clients and that mass production of works of authorship (currently based on production for limited use or copyright) would stop to exist if this market were abolished by some radical left extremists.

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Ralf July 20, 2010 at 6:16 am

In practice you will have an adventage, although of course it much depends on how quick and efficient your “competition” is in reacting. Ways would have to be invented to minimize losses. In the case of books it could be pre-publishing subscriptions, arrangements of meetings with the author, etc. I know it doesn’t solve the problem but it could help. I’m only looking for a practical solution. it is hard to stem the tide of unautherized copying.

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Sasha Radeta July 20, 2010 at 6:54 am

Sure Ralph, but why don’t we let authors and publishers demonstrate what’s best for them – by respecting their basic property rights (which are only formulated in IP laws). By not going to anti-IP camp and by sticking to IP protection, they are just doing that right now.

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Ralf July 20, 2010 at 7:34 am

Well, the discussion about the extent of intellectual property rights is a different discussion than whether they should exist. Perhaps I went too far in my proposal.

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Richard July 20, 2010 at 6:38 am

According to the book “Against Intellectual Monopoly” that is exactly how books were published in the 18-19th centuries. An author would write a manuscript and a sell it to a publisher. The price for the manuscript was all the author would receive. Secondary publishing houses would often make copies of the first published books and sell them. The author would receive no ‘royalties’ from these sales. There was no copyright law and plenty of people still wrote books.

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Sasha Radeta July 20, 2010 at 6:50 am

Richard, – What Dr. Kinsella does not realize is that times have changed since then – it is much cheaper now to produce numerous copies than in 18th century. Like I said, you don’t see prolific authors and publishers arguing for such arrangement, because they would loose money. But that’s beside the point: they have property rights to protect their goods from unwanted use.

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jerry July 20, 2010 at 7:42 am

“What Dr. Kinsella does not realize is that times have changed since then – it is much cheaper now to produce numerous copies than in 18th century.”

Good point. Mistakes like this are bound to come about when you repeat the “ideas are infinitely reproducible” mantra to yourself every day. Making copies of stuff is either cheap or expensive. Sometimes it is absurdly cheap (copying someone who you saw raise their eyebrow). But it is a mistake to say that copying is FREE – it is not, ever, it always uses some energy.

And this is not nitpicking – the only reason these debates are going round and round and round is that people are using language in an imprecise fashion.

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Yair July 20, 2010 at 11:41 am

Jerry,
I have no idea what ideas are, and what you can or can’t say about them.
Take the concept ’1′ for example, it definitely seems infinitely reproducible to me. You can build a clock that beeps once every second. I think that you can say every time that it beeps that it beeps ’1′ time, thus infinitely reproducing the concept of ’1′ (assuming time is infinite, and if you wish to claim that the clock won’t last forever, then simply pick a random particle each second instead).

Copying is never free because we are physical creatures, that’s a given, but try replacing “ideas are infinitely reproducible” with ‘ideas are not scarce’ when what I mean by that is that the access to an idea by a single person does not impede on the access of anyone else to that same idea.

jerry July 20, 2010 at 12:30 pm

Who’s talking about ideas? I thought we were talking about books.

jerry July 20, 2010 at 12:33 pm

Apologies, I said it. I meant “information” not “idea” when I said it originally.

I agree an “idea” (not defined but we can likely agree) can’t be restricted in any meaningful sense. But putting a dvd in a burner and copying a movie is a definite process and can be restricted if we want.

mpolzkill July 20, 2010 at 12:38 pm

Fining the copier can be an option. Arresting him when he doesn’t pay the fine is an option. If he completely resists your ideas about what you think you need, killing him is often the cop’s first option.

Peter July 20, 2010 at 5:37 am

Otherwise how, for example, an author can have any confidence in showing his work to publishing houses when they can refuse to enter into a contract with him and then publish his work paying him nothing.
But that’s trivially solvable: just execute a non-disclosure agreement with the publisher before showing him your work.

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Ralf July 20, 2010 at 6:04 am

For such an agreement to be valid you have to admit the possibility of legal protection of the “pattern” (“idea”, “recipe”, etc.). If the law excludes such a possibility under the premise that e.g. such goods are “free” goods, like air, sunlight or gravity, you cannot form a legal agrrement of this sort. So in the situation of no protection of “intellectual property” you could not enforce such an agreement, even if made.

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Peter Surda July 20, 2010 at 6:38 am

For such an agreement to be valid you have to admit the possibility of legal protection of the “pattern” (“idea”, “recipe”, etc.).

No no and again no. Why do people not educate themselves before participating in a debate, and instead each of them makes the same error?

You can put any sort of restriction into a contract. Property rights on the object of restriction are not necessary for such a contract to be valid. If I agree to stand still for an hour, it does not require the other party to contract owns “movement” or “one hour”, or, for that matter, anything.

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Ralf July 20, 2010 at 7:16 am

First, we are not talking about the current law but the law in the world where there is no legal protection of any patterns created by people, which means that you cannot persecute anyone for copying anything in any circumstances. Let us talk about such a world. I don’t need to educate myself about what the present law says, it is the future solutions that are the object of discussion.
Second, even unproperly educated in law I am sure you cannot put any sort of restrictions into a contract. For example, you cannot commit not to breathe for fifteen minutes. Even if you make such a contract it will not be considred valid by the court. We are talking about the situation when a commitment not to copy will be like a commitment not to breathe.

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Joshua July 20, 2010 at 8:58 am

I think he was talking about educating yourself about the debate. Read what others have written on the subject on this site. Unfortunately, there are some that do not read up on the matter, so the same questions keep being asked and answered whenever there is a new blog post about it. It’s rather annoying.

Peter Surda July 20, 2010 at 9:37 am

This is a quite simple matter, or so I would have thought. Trespass requires property rights in the object of trespass, contract violations do not require property rights in the object of the restriction. Therefore, from the fact that it is possible to put a restriction into a contract, it does not follow that you have property rights on the object of restriction. Of course, it does not follow either that you do not have a property right in the object, my sole point is that the causal relationship does not work in this direction. For this argument, it is completely irrelevant what the actual property laws are or whether IP is valid or not.

Current law, indeed, makes some promises unenforceable (i.e. contracts void). The example I remember from my studies is that something impossible cannot be a substance of a contract. Also, most contracts involving a promise of own death would probably not enforced either. However, this has no influence on my original argument.

Sasha Radeta July 21, 2010 at 7:56 am

Peter tries to ignore the fact that IP violation does not have to involve breach of contract, because authors own their works as physical property — and unauthorized use by parties outside of contracts is trespass by definition.

RWW July 21, 2010 at 8:19 am

Peter tries to ignore the fact that IP violation does not have to involve breach of contract, because authors own their works as physical property — and unauthorized use by parties outside of contracts is trespass by definition.

Peter is addressing the most common argument in favor of “IP” — that it is like a contract, or could be established on the basis on contracts.

Your argument based on withholding the rights to specific uses of property is more nuanced, in my opinion, and therefore more difficult to deal with. But it is also flawed, as I explained elsewhere, because it is often not necessary to “use” an item, in any reasonable sense of the word, in order to copy it — you merely have to be exposed to it.

Peter Surda July 21, 2010 at 8:37 am

IP violation does not have to involve breach of contract

This is strangely worded. Those are two separate concepts. Of course, there might be situations where they coincide, but in general there is no connection.

… because authors own their works as physical property — and unauthorized use by parties outside of contracts is trespass by definition …

If you phrase your contract in this way, that the sale does not transfer the ownership of the physical good(e.g. book) and a third party makes a copy by trespassing the physical good, then it is still trespass, obviously. However, that is just wishful thinking. Contracts are not phrased this way, and it is possible for a third party to obtain a copy without physical trespass, only by the second party’s breach of contract. It can be the second party that copies the data onto a physical disk owned by third party, for example. Or transmits the data through a connection that is not co-owned by the author. Either way, without the physical trespass, there is no recourse against the third party. Unless, of course, you have IP laws.

Charred Knight July 20, 2010 at 5:31 am

Here’s a thought

Why is it illegal for me to destroy Jefferey Tucker’s car but not a meteorite? The reason is that we have created laws unnatural to this Earth. So why do you find fault with me destroying your car but not find fault if I you write a book, and I download it off the internet? The only reason their both illegal is because the law says so.

If a wolf kills another wolf, the latter’s mate can’t call the wolf cops and have the first wolf arrested. If a hunter kills a deer, the police don’t arrest him for murder. To claim that the law can imagine offense in one situation, and not in a second is stupid.

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Bala July 20, 2010 at 6:17 am

Are you saying that the concept “property” is nonsense?

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Charred Knight July 20, 2010 at 6:39 am

I find the idea of “natural law” ridiculous, because “natural law” is only intended for Homo sapien, not even other members of the Hominidae family.

Property is the invention of humans, tnat was created to benefit humans and is intended to exclude any animal not human. Wild Deer inhabit the area I live in, I can not arrest the deer for invading my private property. If property was a natural law than I would be able to arrest the deer.

If murder was a natural law, than I should be arrested for the solication of murder whenever I stop at Mcdonalds and order a hamburger.

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Daniel Coleman July 20, 2010 at 8:24 am

“If murder was a natural law, than I should be arrested for the solication of murder whenever I stop at Mcdonalds and order a hamburger.”

No, because murder only pertains to persons (i.e., moral agents). A cow has no right not to be killed; a human person has that right.

I think you’ve set up a false dichotomy between there being no laws and there being only arbitrary ones. If laws are facts about nature, then these two scenarios aren’t our only options. Does the fact that human beings are persons imply rights? You may disagree, but in your current argument you seem to rule it out as a logical possibility, which is something stronger than mere disagreement.

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Charred Knight July 20, 2010 at 9:53 am

My problem is that when you basically say that their are rights found in nature that is unique to one species. That doesn’t make sense, you can’t treat laws about property like they where the laws of thermodynamic. If you say that man should be given personal freedom than that would mean going back to what we where before civilization, if I was truly given personal freedom that laws like property shouldn’t exist. They don’t add to freedom they subtract from it.

Yes, laws about property are a good thing, but so are laws about Intellectual property. I mean Stephen and Jefferey act like their opinions are right and really give no backing to why they are right. In particular the creator endorsed sticker that Stephen brought up is posibbly the stupidest idea I have ever heard. It’s quite clear that Stephen really doesn’t understand why people pirate, because Stephan clearly has never done any research into the mindset of a pirate. I mean just reading what some guy said on some blog about piracy will tell you that these people don’t care about the creators. They proclaim that the copying of ideas is the same as progress. Taking an idea and expanding on it is progress, making “Harry Potter goes to America” is not progress. They say that they can only hypothesis what a world without copyright would look like, but certain things such as anime, and video games are so heavily pirated that you can see what the world without copyright would be like.

The nintendo DS in particular has suffered with the R4 cards which allow people to play illegally downloaded games on the DS. The result is that only a few titles such as pokemon and Mario actually have huge numbers. The fact of the matter is that people who are tech savvy and know about the r4 card generally don’t buy the games. The result is that after a very promising begenning the Nintendo DS is simply not getting any major games anymore. All of the companies are setting their sites on the X-box 360, and PS3 because those games are less pirated. I think the third Golden Sun is really the last major game the DS is getting.

With copyright gone, the companies who make the r4 card can advertise it as a card that will play all the hit video games at websites that you can easily find for free. Yes, before the internet their would be sufficient leadtime, but with the internet most video games can be easily gotten in a very quick time. How can you sell a book, if its going to end up on the Kindle or the latest I-pad in a week.

Look at how the anime industry in america collapsed due to people being used to illegally downloading anime. The only people who buy anime anymore are the few who want tu support the industry and those who want to see the series in English.

You can’t see the world in a black and white place, and frankly Stephen does.

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Peter July 20, 2010 at 8:37 pm

My problem is that when you basically say that their are rights found in nature that is unique to one species. That doesn’t make sense
Why not? There’s something similar to a “law in nature” that birds can fly…and another that humans can’t. Different species have different natures — by definition — therefore it’s perfectly reasonable that “natural law” applies differently to different species. It wouldn’t make sense not to.

Keith Hamburger July 20, 2010 at 8:55 pm

Butler Shaffer addresses that stuff pretty well in “Boundaries of Order” available as a free PDF elsewhere onthis site.

Charred Knight July 21, 2010 at 2:00 am

The ability to fly is found in birds, mammals (bats), and insects.

Do you honestly think bats and flies are birds?

Also the first homo sapiens started appearing at least 200,000 years ago, the first reference to property dates back to about 4,000 years ago. Property really isn’t important to a nomadic culture.

Baten July 21, 2010 at 3:16 am

Man, you are so wrong about de whole DS and R4 thing.
DS is extremely succesful – with over 130 milion units sold so far and bilions of games sold – exactly because it is easy to pirate, not in spite of this.
Nintendo could have made the DS un-piratable if they wanted to, just like PS3 is – after 5 years – completely un-piratable.
They choose not to, exactly because they wanted to sell more hardware, and consequently more software, based on the PS2 and PS1 model. You see, PS2, in its 11 year since launch, managed to sell around 140 milion units, and more than 2000 milion pcs of software, by far more than any other console ever. Xbox and Gamecube together only sold around 45 mil units. How was that possible, if you take into account that PS2 was also very easy to pirate and the most pirated console ever produced? It was even more pirated than DS is now.

Sony thought that this piracy is making them loose money, so they made PS3 completely unpiratable, whereas the competitors, Xbox360 and Wii remained very easy to pirate. The result is that PS3 is last in marketshare, and is selling less software than either 360 and Wii. I am pretty sure both Microsoft and Nintendo are “against” piracy, but they actually do nothing to make their products pirate-free, because it would hurt their interest.

The technology exists to make games and consoles unpiratable, it’s up to the manufacturers to implement them, and they actually choosing not to.

Peter July 21, 2010 at 8:42 pm

The ability to fly is found in birds, mammals (bats), and insects. Do you honestly think bats and flies are birds?

You have a little problem with logic. All I said was that birds can fly. I didn’t say everything that can fly is a bird. You should have learned in day one of your first middle-school logic lesson that “A implies B” is not the same as “B implies A”.

Also the first homo sapiens started appearing at least 200,000 years ago, the first reference to property dates back to about 4,000 years ago.

The first references to property date to the first (known) occurrence of writing (somewhat more than 4000 years ago, by the way). Obviously there can be no earlier references — to anything — than the beginning of written records!

Greta July 20, 2010 at 9:24 am

Charred Knight,

Your understanding of natural law seems minimal (to put it kindly). Maybe you’ll find this quote from David Hume helpful:

When I deny justice to be a natural virtue, I make use of the word ‘natural’, only as opposed to ‘artificial’. In another sense of the word; as no principle of the human mind is more natural than a sense of virtue; so no virtue is more natural than justice. Mankind is an inventive species; and where an invention is obvious and absolutely necessary, it may as properly be said to be natural as any thing that proceeds immediately from original principles, without the intervention of thought or reflection. Though the rules of justice be artificial, they are not arbitrary. Nor is the expression improper to call them Laws of Nature; if by natural we understand what is common to any species, or even if we confine it to mean what is inseparable from the species.

You seem to follow Hume in thinking that “natural=proceeding from original principles, without the intervention of thought or reflection”; everything else is “artificial invention”. But Hume, sensibly, recognized that thought and refection are “inseparable from the species”, that mankind is by nature an inventive species. Consequently, he had to admit that some inventions (he meant discoveries) are “natural” because they answer to requirements of thought, which is itself a non-artificial, natural faculty of the species. They are natural (non-arbitrary, obvious, absolutely necessary, and therefore not contingent artifices) in the sense that mankind would not be an inventive species if it had not discovered that reason and reflection are subject to objective laws; but they are artificial in the sense that it requires discipline to reason and reflect correctly–and such discipline does not come naturally, without thought or reflection. But that is true even of the laws of physics: they are natural laws, but it happens that engineers, architects and medical professionals apply them sloppily or fail to take their less obvious consequences into account.
When Hume denied “Justice is a natural virtue”, he interpreted the claim as having a meaning few, if any, thinkers in the natural law tradition ascribed to it. In short, his denial was aimed at a straw man. But he did not go so far as to claim that the idea of natural law (even concerning virtue and justice) is ridiculous.

I’m sure you were merely careless in expressing yourself. If you were not, you would seem to suggest that
- If magnetism were a phenomenon subject to natural law then I would not be able to walk past a magnet without being at least slowed down.
- If English were a natural language then I would be able to talk to the animals (and everything else).
These are absurd claims; therefore, I conclude that you wrote your comment without due care.

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Charred Knight July 20, 2010 at 10:16 am

My point is that property laws where created so some guy doesn’t take your land or your stuff by stealing it from you or even killing you. Copyright laws where created so that people would come up with their own ideas and not just copy from someone else. Stephen claims that with sufficient lead time you can still make money without copyright, but with the creation of the internet, and with products moving to digital, that lead time simply no longer exists.

To claim that certain laws have to be made, while certain laws can’t be made, simply does not make sense. You just can’t look at the world through the eyes of philosophy, you have to look at real world applications.

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Michael McLees July 20, 2010 at 9:10 am

I am so glad to see that I’m not the only pro-IP person here.

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Deefburger July 20, 2010 at 9:32 am

The question is can IP be owned the same way as physical property. It is not physical, it is non-physical. It is a pattern. A pattern can arise over and over again without diminishing or changing the original in any way. This is the natural law surrounding such things because such things are non-physical.

Physical things can express pattern in their form, but they do not make the patten scarce. There is no limit to the number of physical things that can express the pattern of the non-physical thing. You will run out of the scarce physical stuff long before you reach the end of the non-physical stuff.

As an example to all you liberty minded central bank haters out there, look at how valuable a Fed note is. The only value it possesses is the idea of value created by the forced scarcity of monopoly. That value, because it is an idea, a pattern, a non-physical thing, has no intrinsic value of it’s own, without the law behind it forcing it’s value. The bank, having no limit to the number of notes it can produce, reproduces them at will, and without consequence to the bank.

The natural law of non-physical things is that they are infinitely present and available to any one mind at any time that mind wishes to perceive or conceive of it, unlike physical material which is just as scarce as your own physical presence.

The non-physical idea of Fed notes is forced scarcity. It is unsupported by the physical and the metaphysical realities. This idea that non-physical things can be made to be as valuable as physical things, by decree, is as old as smaller coins with the king’s countenance on them. It’s the same old trick. Non-physical patterns of kingly countenances do not add value to an other wise smaller, worth-less, coin.

Every economic system that has employed this ruse has met with failure. Why? because the natural laws of physics cannot be declared to be the same as the natural laws of non-physics, that’s why. Wish it to be otherwise all you want. Go ahead sparky and say you own the words, the pictures, the patterns, the ideas. The secular, human law may say you are right, but the reality will say otherwise every time.

Buck natural law and you will fail.

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Charred Knight July 20, 2010 at 10:20 am

So what’s your point? Do you have any idea on how a world without copyright would exist or are you simply talking out of your ass.

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Curt Howland July 20, 2010 at 4:48 pm

“Do you have any idea on how a world without copyright would exist”?

http://www.youtube.com/watch?v=zL2FOrx41N0

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Charred Knight July 20, 2010 at 6:27 pm

You can not just claim that all industries are the same. You can not digitize a dress. Music is mostly digital, streaming is becoming more popular with leaps and bounds. In a digital world copyright is needed. If you can’t adress how you can make money (and a ton of money) in a digital industry than stop arguing it. Stephen at least tried to adress it but his lack of understanding on why people pirate is where his sticker plan would fail.

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Curt Howland July 20, 2010 at 9:01 pm

“In a digital world copyright is needed.”

Bald assertion.

“If you can’t adress how you can make money (and a ton of money) in a digital industry than stop arguing it.”

Charred, you might find this interesting: I don’t know how to make a ton of money in ANY industry, or I’d be making a ton of money for myself.

So the fact that people do make money, without copyright, isn’t going to get through your mind-filter unless I tell you how to do it? Nine Inch Nails. Stephan Molleneux. The Mises Institute.

Three examples. Take them and run with it. You’ll thank me in the morning.

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Charred Knight July 20, 2010 at 9:55 pm

The Mises institue doesn’t make a ton of money and certainly not in the relm of 100 million dollars. The music industry has other avenues of revenue such as concerts, and according to yahoo Stephan Molleneux doesn’t exist. Stefan Molyneux is a guy who can’t even get his books published by a real publisher.

I have pointed out that Nintendo DS has seen little in the ways of major games because of the fact that game companies have abandoned it due to the high degree of piracy but then your mind-filter doesn’t include just searching people”s names on the internet. For example the part about how Stefan Molyneux is a self-published author came about because I found his wikipiedia page.

RWW July 20, 2010 at 9:53 pm

If you can’t adress how you can make money (and a ton of money) in a digital industry than stop arguing it.

That’s actually an interesting point. It may be that a lot of the wealth disparity that we see under crony capitalism is brought about by intellectual monopolies. Not that I have anything against wealth disparity in general.

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Charred Knight July 20, 2010 at 10:36 pm

The idea that you can get wealthy is certainly a reason why people create. That’s the intended use of copyrright.

Now I should mention that I think copyright should be amended so fair use and the parody clause is strengthened. For example, if I want to mock a bad movie, or company I should be able to without the person using copyright to protect his image. Copyright should only be used to protect an industry from people who want to profit from other people’s work, not to stifle thought itself.

I think the issue of copyright is a grey area with some companies being to strict, but people like Kinsella see things only one way, that what works for one industry might not work for another industry. The fashion industry is nothing like the video game industry.

RWW July 20, 2010 at 9:51 am

There seems to be a very specific point where the bulk of the reasonable thinkers on the two sides of the IP debate really clash. Certainly, most can agree that the idea of a patent is nonsense. I think most can also agree that a physical object can be sold under certain conditions as to its future use, if those conditions are made explicit and agreed upon. For example, if a book is sold under an explicit agreement that its new owner may not copy it, and that any future owner must be placed under the same agreement, etc., it is certainly wrong for a new owner to distribute copies of the book to others.

The point of contention is whether, once such an agreement is broken and a copy has been made, a third-party possessor of that copy is under some obligation to relinquish the copy or make other amends.

Correct me if I’m wrong.

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Sasha Radeta July 20, 2010 at 11:12 am

RWW, If we follow you example, your third party who obtains unauthorized book-copy is in possession of something that lawfully does not belong to him (everyone reasonable will admit that this unauthorized copy resulted from trespass). So it’s like a third party being in possession of a stolen good or loot, knowing the true origin of that unauthorized copy. Copyright laws just make it clear that if owner of copyrighted material does not transfer his replication rights to someone else — all these copies actually belong to him.

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Michael McLees July 20, 2010 at 12:34 pm

Not everyone agrees with this. I do, but many on this board will simply say that there is no privity of contract between the author and the third party.

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RWW July 20, 2010 at 3:40 pm

So the explicit agreement I mentioned above would include a statement to the effect that any copy made by the buyer (using his own materials) would become the property of the author. I don’t see a problem with that; it seems legitimate to me. But what if a third party provides the buyer with materials (eg. paper) upon which to make a copy of the book? Surely the author would have forbade this in the explicit agreement, so the buyer has certainly violated his agreement, but the paper belongs to a third person not party to the agreement.

If I benefit from another man’s breach of contract, am I somehow liable?

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Sasha Radeta July 20, 2010 at 12:22 pm

Or another, follow-up example – I will show how IP connects with real property issues by going away from typical copyright examples:
Imagine that a guy named Copyright Holder (C.H.) invested thousands of dollars and endured many sacrifices to produce a hybrid seed for a new kind of weed (easy to cultivate) that 100% efficiently help with acne.
C.H. just starts to cultivate his plants when he decides to give one small plant to his friend called Limited User (L.U.), who happens to suffer from the condition. However, C.H. places a condition that his plant is only to be used for L.U.’s personal therapy, while retaining his ownership of this plant. Yet, L.U. soon decides to forget about his limited use and reaps the seeds of his friend’s plant, giving them to his brother called Third Party (T.P.). T.P. uses seeds to start a mass-production of these plants and seeds. Soon, he makes this plant common everywhere, eventually driving down prices of this plant close to zero, but initially making good money without paying a penny to the original owner.

IP opponents say: oh, this is great. This kind of unauthorized use of another person’s property that leads to prosperity – after all, poor people now have easy and cheap access to the medicine they need. However, these extremist lib-communists forget couple of important implications of these actions:
- This entire distribution scheme started with theft of another person’s property. If we decide that such “compassion” for needy people can be used to justify theft – we open the door for the worst possible collectivist chaos in which those who steal live at the expense of those who produce (as in Stalin’s Soviet Union).
- In our example C.H. business will fail after so much of his hardships and money he invested. He will not be able to enjoy the fruits of his efforts due to economic injury that resulted from trespass against his property. When other explorers see how C.H. failed due to the lack of property rights – nobody will be foolish to invest such sums to cure more serious health conditions. Some IP opponents will cynically suggest that he should find other ways to make money: by holding lectures about his endeavors or by asking for patronage from rich sponsors… What they actually suggest is that creative and productive people should live off of other people’s charity, while non-productive thieves and parasites should simply wait for free goods to arrive.

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Michael McLees July 20, 2010 at 12:48 pm

I’ve already tried with these people down this road. Essentially, you’re making the same scarcity argument I made in this set of comments…

http://blog.mises.org/12995/kinsella-ideas-are-free-the-case-against-intellectual-property-or-how-libertarians-went-wrong/#comments

The inventor of the hybrid weed has created an idea (the formula for the weed). He desires to profit by being the exclusive seller of the weed. He is selling to people, and because people (and their dollars) are scarce, he is counting on there being as many as possible to whom he may sell the weed. This way, I go around the typical anti-IP arguments that Kinsella makes, that ideas are non-scarce and non-rival. The population of weed buyers is scarce and is rival (to the degree the weed itself is scarce). TP, flooding the market with weed, has robbed me of my market for buyers.

The anti-IP people then say, “But you don’t own that market and you have no intrinsic right to those sales.” True enough, but ownership comes from best rights, not perfect rights. And surely CH’s rights as the weed’s author to this market are better than TP’s.

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RWW July 20, 2010 at 4:05 pm

Yet, L.U. soon decides to forget about his limited use and reaps the seeds of his friend’s plant, giving them to his brother called Third Party (T.P.). T.P. uses seeds to start a mass-production of these plants and seeds.

The seeds are stolen property, so this action is criminal. But it’s worth noting that in the real world, T. P. is likely to be very secretive about the source of his seeds, and may well pretend to have developed them independently. This would not, obviously, justify his actions, but it would make them potentially difficult to prosecute (absent some kind of patent system). Indeed, once he knows enough about the plants, he probably really could develop them independently with relative ease.

When other explorers see how C.H. failed due to the lack of property rights – nobody will be foolish to invest such sums to cure more serious health conditions.

Let me get this straight: There’s some serious health condition that thousands or millions of people suffer from, and they’d be willing to pay monopoly prices for a treatment if it were discovered, but somehow they just can’t get the funds together to support its potential development?

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Sasha Radeta July 21, 2010 at 8:11 am

RWW,
In my example, T.P. can easily be traced to Copyright Holder – as it is often the case with IP issues. When it comes to sick people getting together their funds to find a cure — how often do you see that when it comes to so called orphan drugs or rare illnesses that not many famous rich people suffer from (Lorenzo’s oil is such rare case)? And if were to reduce the pool of funding to sick people only, do you realize how much we would have hampered all research and development?

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RWW July 21, 2010 at 8:46 am

When it comes to sick people getting together their funds to find a cure — how often do you see that when it comes to so called orphan drugs or rare illnesses that not many famous rich people suffer from (Lorenzo’s oil is such rare case)?

There is no doubt that copyright laws are providing a replacement for the funding processes that would dominate in a free market. This is similar to how the government uses eminent domain to accomplish large projects (road construction perhaps chief among them) that would otherwise require conscious voluntary coordination by numerous individuals.

And if were to reduce the pool of funding to sick people only, do you realize how much we would have hampered all research and development?

Who, other than sick people and their agents, is funding drug development now?

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Darcy July 20, 2010 at 6:08 pm

The answer is really quite simple. No copy of the seed can ever be produced without utilizing the original seed which is the property of the original creator and which he has never agreed to grant the right of replication to anyone. So, that means that all unauthorized copies are the property of the original creator, and he may destroy them or demand compensation for their unauthorized sale at will.

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RWW July 20, 2010 at 10:06 pm

No copy of the seed can ever be produced without utilizing the original seed which is the property of the original creator and which he has never agreed to grant the right of replication to anyone.

True, except that someone might simply hear enough about the seed to reproduce it independently, without ever actually possessing it. But yes, in general you must use the seed to create another of its kind, which illustrates the difference between seeds and books, or paintings, or music. I can copy a painting or a work of music fairly well without ever laying hands on it. I could theoretically do the same with a book (though this is admittedly much less practical.) But just for the sake of (your) argument, let’s stick to the example of a seed that has to be used in order to be copied, and let’s say that the seed is “the property of the original creator [and] he has never agreed to grant the right of replication to anyone.”

So, that means that all unauthorized copies are the property of the original creator, and he may destroy them or demand compensation for their unauthorized sale at will.

How is that so? If I steal something from you, I am obligated to return it if possible and make recompense for damages to you that resulted from the theft. I’m not sure that my theft entitles you to possession of any copies I made.

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Darcy July 21, 2010 at 8:13 am

True, except that someone might simply hear enough about the seed to reproduce it independently, without ever actually possessing it.

Due to the nature of information complexity, that is not possible.

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RWW July 21, 2010 at 8:47 am

Your snide comebacks and hand-waving are getting tiresome.

Peter Surda July 20, 2010 at 10:48 pm

No copy of the seed can ever be produced without utilizing the original seed which is the property of the original creator and which he has never agreed to grant the right of replication to anyone.

So, are all externalities property rights violations then?

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Peter Surda July 20, 2010 at 10:18 pm

IP opponents say: oh, this is great. This kind of unauthorized use of another person’s property that leads to prosperity …

This is a utilitarian argument, so we can ignore it.

Besides, the same “problem” occurs when any substitute/externality appears on the market. Externalities prevent you from reaping “full” benefits of your actions, and substitutes “take away” your market share. If your theory was correct, you would need to either admit that all substitutes and externalities are property rights violations, or explain how to differentiate between substitutes and property on the similarity scale, and between externalities and property on the causality scale.

This entire distribution scheme started with theft of another person’s property.

This entire argument bases on the premise that you pull arbitrary conditions out of your ass and call them property or theft. It’s unscientific.

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Michael McLees July 21, 2010 at 8:17 am

If you can’t understand that the origin of a substitute product is what we’re talking about, you’ve no place in this debate. If I create a book, you steal it without my permission, and then make copies/substitutes/externalities, etc… then that is a property right’s violation. And don’t tell me it’s a trespass. I know that. It’s also a violation of my IP rights.

If I create a book, give it to you as a gift, and you copy it with my permission, flooding the market in the same exact way as in the prior example, then we are left with, from the point of view of potential customers, the same situation. But because the copies originated in a legitimate way, there is no violation of my IP rights.

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Peter Surda July 21, 2010 at 8:48 am

If I create a book, you steal it without my permission

But that’s “stealing” in a metaphoric way. Merely because you make up a metaphor and claim that a copy is not an externality and not a substitute does not make it so. It is something that IP proponents need to prove, rather than assume. You need to explain how to divide causality and similarity into “permitted” and “forbidden”. Which, of course, is pretty tough, as causality stretches to infinity and similarity is subjective.

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RWW July 21, 2010 at 9:25 am

To be fair, I think it’s clear that he meant “steal” in a very literal sense.

Michael McLees July 21, 2010 at 12:06 pm

I did mean it in a literal way. Like, I have a diary under my pillow, you steal it, copy it, and sell the copies to the general public resulting in the externalities you talk about. We can reach the same externalities by me selling you both the diary and the right to copy and sell anything in it for your own personal gain. Taking a snapshot of the current stake of the externalities which resulted from my diary tell us nothing of the method used to spread the diary’s contents, which makes it irrelevant.

The point I’m making is that in the first case, I would only have a claim of trespass (you went in my room without my permission, etc…), which might be some kind of minor penalty. But I would have no right to attempt to reign in the spread of my diary’s contents. After all, I have no rights in the words, only my bedroom which you broke into. This to me seems absurd in the extreme. Just because it is now “out there” doesn’t mean the general public has any “right” to my diary, which let’s just say for the sake of argument, contains the designs for a time machine.

And a quick Google search for “intellectual property causality similarity” doesn’t yield anything close to the graph you cite. Can you link me to the graph and the explanation?

Peter Surda July 21, 2010 at 2:47 pm

But I would have no right to attempt to reign in the spread of my diary’s contents. After all, I have no rights in the words, only my bedroom which you broke into. This to me seems absurd in the extreme.

This is why I call the theory I assembled to explain how IP theorists argue “The Theory of Claims on Causality”. You assume that if an injustice happens, you have the claim on the actions of all people that were causally influenced by the injustice. You are trying to put the worms back into the can. The problem is that causality extends to infinity. The person that caused the injustice might be liable for damages even beyond the scope of the closest proximity, but you cannot extend your claim to other people merely on the ground of causality. Even with physical goods, if they end up with a third party who was not responsible for the injustice, the only thing you can claim on them is to return your property. You can’t sue them for damages. Since with IP, you have not lost your property in the first place, they cannot return it. So, IP advocates propose that instead of returning property, third parties need to be deprived of the benefits of the injustice. This begs the question, why? It is not something that is necessary to make the theory of property consistent.

And a quick Google search for “intellectual property causality similarity” doesn’t yield anything close to the graph you cite. Can you link me to the graph and the explanation?

I have not actually published any books on the topic yet, but the description can be found on comments to earlier mises.org blogs. I believe that I also posted it once on the objectivist blog where you were also participating, however it did not seem to have been met with comprehension.

Michael McLees July 21, 2010 at 7:02 pm

A Google search for “The Theory of Claims on Causality” reveals the you either provided me with an incorrect name for your theory, or you’ve written so little about it that Google’s spiders have failed to pick it up. In other words: It doesn’t come up. There has obviously been so little written about it that it’s probably not worth my time to look it up. If you want to point me directly to it, I’d be happy to read it. Otherwise, I’m not going to hunt for it anymore.

And the third party ignorantly innocent downloaders of pirated films, books, music, etc… Would you say that they are not obligated to even delete their pirate copy? They never paid the author for it. And if they paid a pirate for it, the pirate never paid the author. Why do they have a right to keep it? I would say, if they benefited from the authorship of the work, and the author is still around collecting payment from regular customers, he has every right to demand payment. And if the pirate shared to a million people, he has a right to ask for payment times a million. If you’re not willing to pay for the benefits you’re receiving… stop going to such lengths to receive them (downloading obvious pirate copies of films, for example).

Peter Surda July 22, 2010 at 3:43 am

A Google search for “The Theory of Claims on Causality” reveals the you either provided me with an incorrect name for your theory, or you’ve written so little about it that Google’s spiders have failed to pick it up.

I only came up with this name about a week ago and believe this is only the second time I mentioned that label, so, unfortunately, google cannot index my brain :-) .

And the third party ignorantly innocent downloaders of pirated films, books, music, etc… Would you say that they are not obligated to even delete their pirate copy?

Well, would you say that if you obtained a stolen car, not only you have to return it after the owner is found, but also all the objects transported by it during your use of the car have to be relocated to their original positions? Causality extends to infinity. This is exactly the question: how do you divide causality into “good” and “bad”? I mean, without the use of metaphors or utilitarianism.

Michael McLees July 22, 2010 at 7:49 am

Well isn’t that just dandy. Your theory is written in your head and all we’re privy to are the conclusions of said theory. If you want me to take is seriously, I suggest you write out the theory, get some free blog space, and post it up. Otherwise, don’t mention it.

And if your argument is that because IP causality extends to infinity, that it is not property, I don’t see how you distinguish IP from physical property. The physical property may not extend to infinity, but as you just said, the causality of it does.

The answer to your question is, it depends on the rules of the game. If the laws stated that if you did in fact purchase a stolen car, and the owner was found, that you’d not only need to return the car itself, but also return every article of transport to its original position, then that’s what you’d need to do. In such a system, people would be very wary of potentially purchasing stolen goods. It turns into a simple cost benefit analysis, not a superficial “causality/externality” debate.

RWW July 22, 2010 at 10:02 am

Your theory is written in your head and all we’re privy to are the conclusions of said theory.

Haha, this sounds like the beginnings of an analogy to patent law.

Peter Surda July 22, 2010 at 10:18 am

Well isn’t that just dandy.

I apologise, my thoughts are scattered all over this blog. I hope to one day present them in a more compact form.

The Theory of Claims on Causality states that if one has some sort of claim (e.g. property claim) on A, and B is causally related to A, then one also has some sort of claim on B. My problem with this is that I consider causality an insufficient condition for this implication (because, as I said, causality extends to infinity).

I don’t see how you distinguish IP from physical property.

That is because I think the Theory of Claims on Causality is wrong. I only constructed it to explain how IP proponents argue, not because I agree with it. The way to “fix” this is to abandon it and use another one, which I explained also on this blog (to be honest, major parts of it are merely taken from Hoppe). Hoppe says that property right is a right to the integrity of the property. I consider this incomplete, so I use the word change to denote a property right violation if undesired. Change including integrity and location. So, there is no need for causality. Change does not extend to infinity. If you change something, either you are the first to do so and then this act of change homesteads it, or you are not the first, and then you need the permission of the owner. Things that cannot be changed cannot be homesteaded or trespassed.

If the laws stated that if you did in fact purchase a stolen car, and the owner was found, that you’d not only need to return the car itself, but also return every article of transport to its original position, then that’s what you’d need to do.

But this is exactly the problem I’m talking about. Why should causality be divided into good and bad in the first place? If it shouldn’t, why should law say otherwise? If it should, then what method does one use to create the law?

Michael McLees July 22, 2010 at 11:51 am

It isn’t “causality” that’s being eliminated; its stolen benefits.

Peter Surda July 22, 2010 at 1:00 pm

It isn’t “causality” that’s being eliminated; its stolen benefits.

But “stolen benefits” is just a metaphor for a chunk of causality (with a bit of utilitarianism added in the mix). How do you steal that which didn’t exist before the time of alleged theft? It seems it is impossible to explain IP without invoking metaphors. Stolen benefits is just another one, in addition to fruit of labour, creation of mind, rearranging patterns, extending sovereignty. What is the meaning of any of those, other than causality?

Michael McLees July 22, 2010 at 1:23 pm

It’s not a metaphor at all because the benefits did exist before the alleged theft. The benefits of a work of art don’t all of a sudden appear only after the theft. They are in the work and in the minds of those exposed to the work. The fact that you want to help yourself to those benefits without paying (or worse yet, take those benefits, copy them against the will of the author and distribute them yourself) the one who made those benefits possible in the first place is almost beside this particular point.

Peter Surda July 22, 2010 at 10:39 pm

I don’t understand the argument. How can an immaterial benefit exist before it is executed? The knowledge of it can exist, giving someone an advantage, but not the benefit itself. If you know something, why should it give you a claim on something that matches that description? That’s just a sophisticated version of dibs.

TokyoTom July 20, 2010 at 2:00 pm

Jeffrey:

I tried to post a few comments but I don’t see them up. I left a copy here:

http://mises.org/Community/blogs/tokyotom/archive/2010/07/21/charitable-discussions-of-ip.aspx

Regards,

Tom

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Rick July 20, 2010 at 2:25 pm

Why did Smith feel the need to post a picture of him posing with a gun? How is that picture relevant to a discussion about IP? Is that an attempt to intimidate or come off as macho libertarian gun slingers?

Forget about IP for a minute, because it’s that kind of stupid gun posturing that makes it harder on gun owners who take firearms seriously and responsibly and who don’t go around flaunting or posing like that just for the purposes of acting tough or “libertarian”. If you have a gun, fine. But hopefully you’ll never actually have to use it for self-defense, which means don’t draw unless you intend to fire and don’t waste your time trying to impress people who know better with stupid pictures like that.

What monster kooks. I don’t care what they’ve written or how many books they’ve sold. They’re total dorks playing the role of one of their tough guy fantasy characters when they pose with guns like that. Such alter-ego nonsense. And that instantly makes me wonder the merit and depth of their IP argument. Is it principled and well thought out, or just more alter-ego role play?

I wouldn’t be surprised if he doesn’t even bother training with his gun, at least not seriously, because anybody can shoot at a fixed target, and I bet he probably couldn’t hit the side of a barn if in that million-to-one chance he should actually need to use it.

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Peter July 20, 2010 at 8:44 pm

What picture of him posing with a gun? Do you mean the one on the front page of ncc-1776.org? That’s not L. Neil Smith, that’s Nathan Fillion, the actor from Firefly (more recently: Castle)

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Ralf July 20, 2010 at 2:25 pm

It occurred to me that TV signal is something intangible that can be easily multiplied. So perhaps connecting to a cable TV line without payment should be made legal. Anyway, nobody will lose any of their signal if you take some.

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RWW July 20, 2010 at 3:43 pm

The cable line is the property of the cable company. So while “stealing” cable is not theft, and is not necessarily a trespass against the paying customer, it is trespass against the company.

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Ralf July 20, 2010 at 4:08 pm

Right, but I would like to know if IP-opponents would accept legalization of accessing to the line without the company’s consent. After all, nobody would have less signal in effect and the flow of information would be less hindered.

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RWW July 20, 2010 at 4:14 pm

But someone’s physical property would be trespassed upon. How is this analogous to the anti-IP position?

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Michael McLees July 20, 2010 at 4:25 pm

Because the Kinsella anti-IP position is not prefaced on issues of trespass, but on non-scarcity and non-rivalry.

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RWW July 20, 2010 at 4:49 pm

I’m not sure what you mean by “preface,” but no one is going to argue that it’s okay to enter someone’s home against his will in order to make a copy of his book. Your analogy is downright stupid.

RWW July 20, 2010 at 5:03 pm

(I suppose that should be “Ralf’s analogy”…)

Michael McLees July 20, 2010 at 6:02 pm

To a degree, I think the analogy holds. RWW, suppose I, a cable subscriber, using a computer, stream Fox News to my blog. Anyone who visits my blog can watch Fox News for free. We all agree that I have done something wrong here. But what?

I’m not sure you can make an argument for trespass, because trespassing on someone’s property assumes that there is property on which a trespass can take place, which in cases of intellectual property and most Libertarians on this board say doesn’t exist. Of course, I can make that argument because I don’t buy into the anti-IP logic, which essentially goes… “Ideas are non-scarce and non-rival, and therefore not subject to being someone’s property.”

And if you want to use a trespass argument, would you seriously say that I have only trespassed on the cable company (who owns the physical cable), or have I trespassed on their content as well?

Peter July 20, 2010 at 8:46 pm

We all agree that I have done something wrong here.
We do?

RWW July 20, 2010 at 10:15 pm

We all agree that I have done something wrong here. But what?

Violated the explicit terms of your cable subscription.

And if you want to use a trespass argument, would you seriously say that I have only trespassed on the cable company (who owns the physical cable)…

Ralf’s analogy speaks of a physical trespass, which makes it incredibly inept. Your analogy deals with a breach of contract, which I suppose can be called a trespass. But it wouldn’t be so without the explicit agreement not to redistribute. And to receive the redistributed content is no crime, in the strict sense of the word, unless since the receivers are under no agreement with the cable provider.

…or have I trespassed on their content as well?

I don’t know what that means.

Ralf July 20, 2010 at 11:27 pm

Michael’s analogy is better than mine, and if his violating the terms of his subscription is a problem then I suppose if his friend, who is not a subscriber, uses Michael’s cable connection and does the streaming this problem is removed.

RWW July 20, 2010 at 11:37 pm

Why wouldn’t that situation also be covered by the terms? The problem is not removed; it is still laid at the feet of the subscriber.

Ralf July 21, 2010 at 12:53 am

If the terms cover the behavior of third parties doesn’t it start looking like a copyright? And instead of putting numerous provisions in every contract dealing with distribution of information isn’t it more practical to have general copyrights?

RWW July 21, 2010 at 1:32 am

If the terms cover the behavior of third parties…

They could cover how you allow a third party to use your equipment.

…doesn’t it start looking like a copyright?

Hey, if someone can come up with a way to simulate copyrights peacefully, I have no objection to it.

And instead of putting numerous provisions in every contract dealing with distribution of information isn’t it more practical to have general copyrights?

The provisions are illegitimate unless explicitly agreed upon in each individual case. But it would be natural to see a great deal of standardization.

Ralf July 21, 2010 at 4:14 am

I’m affraid IP-opponents may want to prohibit any peaceful simulation of copy rights. I may be wrong here but if they consider restrictions to the flow of information as harmful monopoly then I think one could expect this of them.

Peter Surda July 21, 2010 at 6:21 am

I’m affraid IP-opponents may want to prohibit any peaceful simulation of copy rights.

On the contrary (if I may be so bold and assume the royal we). We want to prohibit violent “simulation of copyrights”. Peaceful ones, like ones based on contracts, social norms or standardisation organisations are perfectly fine, however, might not allow some of the tight grips available now, and of course, can lead to bubble bursts.

mpolzkill July 21, 2010 at 6:53 am

If all the “IP” rent seekers here are more afraid of us (the royal us) than they are afraid of the State, I can only conclude that they are statists. Well, because of that and because they are RENT SEEKERS! Every statist from GM to, to the FED has the same basic argument as you guys.

Ralf July 21, 2010 at 7:37 am

I just wonder why did I have an impression that IP-opponents would, if they could, either forbid making contracts that restrict copying and distribution of some contents or relieve from responsibility those who breach such contracts. That may be just me (nobody is perfect, especially me) but perhaps there is also something wrong with the argumentation.

mpolzkill July 21, 2010 at 8:25 am

I don’t know where you got the idea, Ralf. I can only speak for myself, but I wouldn’t “forbid” you doing anything but assaulting me or my property (and I’ve been reading these things for years now, I came to them from a neutral position, and to this day I haven’t seen anything from the “IP” believers that’s any more convincing than what GM and W. and Obama told us on *that* matter of life and death.

Will July 20, 2010 at 5:25 pm

In addition, there is the cable companies server bandwith limitations. Especially with internet. Stealing cable may actually degrade the performance of other’s internet access.

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Darcy July 20, 2010 at 6:17 pm

One presumes that the website pays its ISP bills, and that your objection is a red herring and utterly irrelevant.

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Will July 20, 2010 at 5:21 pm

IP is coercive market protection. A cartel with erroneus rules catered to boosting a business model. Whole industries are created based on these rules. Specifically the movie and music industry. No libertarian can ever convince me that a free market would produce as many big budget movies as they do now. I don’t even think this market would exist as it does.

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Darcy July 20, 2010 at 6:15 pm

Whole industries are created based on these rules.

That is the whole point of having private ownership, that it makes capitalism and advanced civilization possible. Intellectual property makes possible advanced industries in the production of information.

The reason we can see a wonderful movie such as Inception is because, and only because, intellectual property rights exist.

What you are advocating is the total destruction of industry, which is identical to the communist position.

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Baten July 21, 2010 at 4:18 am

“The reason we can see a wonderful movie such as Inception is because, and only because, intellectual property rights exist.”

It is very easy and convenient to point out what we “might” loose in absence of copywright and IP laws.

However, nobody can really fathom what we are actually loosing precisely because we have these stupid laws

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Darcy July 21, 2010 at 8:08 am

The laws do not prevent you from producing free information. The entire free software movement exists thanks to that fact.

In reality, we are losing absolutely nothing.

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jerry July 21, 2010 at 5:00 am

“No libertarian can ever convince me that a free market would produce as many big budget movies as they do now. I don’t even think this market would exist as it does.”

I agree, it wouldn’t – andthat’s a problem why? I don’t think spending 200m dollars on a piece of mind numbing junk is a good use of society’s resources. I personally can put up with low budget films and will happily pass on Lord of the Goddam Rings.

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Michael McLees July 21, 2010 at 8:05 am

What a snarky little pissant you are, jerry.

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jerry July 21, 2010 at 3:48 pm

What’s the problem?

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mpolzkill July 21, 2010 at 4:32 pm

I don’t know either, I liked your comment, Jerry. Yes, who needs this junk?

Shady, hmm?

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Darcy July 20, 2010 at 6:12 pm

I think this discussion proves one thing, that a large part of the readership of Mises.org is very open-minded in the debate on intellectual property, and the editorial stance of the site could open the debate a bit more instead of ram-rodding the Kinsella positions and mocking its opponents.

There are some very good topics on the subject in the Mises forums themselves. (For example: http://mises.org/Community/forums/t/13841.aspx) Some could be recruited for the Mises blog.

I don’t think it serves Austrian economics to just repeat Kinsella’s words verbatim.

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RWW July 20, 2010 at 10:40 pm

I think this discussion proves one thing, that a large part of the readership of Mises.org is very open-minded in the debate on intellectual property…

What do you mean by open-minded? Only a small handful of people (two or so) in this discussion have not taken a firm position one way or the other on the issue.

…and the editorial stance of the site could open the debate a bit more…

This debate seems pretty open to me.

…instead of ram-rodding the Kinsella positions and mocking its opponents.

Why are they the “Kinsella positions”? Are yours the “Ayn Rand positions”? And how is the anti-IP position being ram-rodded?

There are some very good topics on the subject in the Mises forums themselves. (For example: http://mises.org/Community/forums/t/13841.aspx)

The overwrought argument presented there was raised briefly in this very discussion by Yair.

Some could be recruited for the Mises blog.

On what basis would they be chosen? (That’s not a rhetorical question.)

I don’t think it serves Austrian economics to just repeat Kinsella’s words verbatim.

What are you talking about, precisely?

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Michael McLees July 21, 2010 at 8:07 am

I think what she is getting at is that for every 1 post on the ails of public education, there are 10 posts on IP. And the 10 posts are nearly uniform in content and form, primarily because they come from 2 people who push the same views over and over.

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RWW July 21, 2010 at 8:36 am

I do also feel that there are far too many IP-related posts on the Blog, relative to posts on other topics. But I think that’s simply a result of one of the blog contributors specializing in IP law and being a prolific writer.

Is there a contributor who specializes in public education? If not, I think it’s a real shame.

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mpolzkill July 21, 2010 at 8:46 am

On any subject where “libertarians” feel that *their* government provided rice bowl is being threatened you’ll find a great and long caterwauling.

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Darcy July 21, 2010 at 8:09 am

Perhaps if you read whole paragraphs instead of single sentences, things would start to make sense.

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RWW July 21, 2010 at 8:34 am

Oh hilarity. Two of the three paragraphs of your comment are single sentences. Do you refuse to answer follow-up questions because you haven’t even read what you wrote ourself?

Let me give you another chance:
1. On what basis would you propose that new blog contributors favorable to your side of this argument be chosen?
2. Who is repeating Kinsella’s words verbatim?

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RWW July 20, 2010 at 9:26 pm

J. Neil Schulman has now deleted a couple of comments (at least two that I know of) from his blog for expressing a desire to avoid his works and those of Smith in the future (which he characterizes as insulting his friend and denigrating their writings). Obviously he is well within his rights in doing so, as I am within my rights to say that this action is pathetic.

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Baten July 21, 2010 at 4:09 am

How can one justify the copyright of some form of expression and not others?
For instance, jokes cannot be copyrighted. I mean, they could but it would be laughable.
If Jay Leno tells a “copyrighted” joke, that would mean that I cannot make a mental copy and re-tell it to a friend?
If he decides to write a “copywrited” book with said joke, am I forbidden to re-tell it in my own book? Of course not. Jokes are “copyed” all the time, by everybody and his dog.
But that does not prevent some joke-tellers to make unbelivable amounts of money in this “non-copywrited” way.
At what point can we draw the line and say that a joke is serious enough that copywright should get involved and people no longer have the right to make their own “copy”?

Under a free IP world, I am sure a lot of “industries” as we know them today would dissapear. However, a lot more other “new industries” would apprear.

People are creative and no one can stop this with or without IP laws, since creativity has nothing to do with IP law or copyright.

And one more thing – IP and copywright exists only because law enforces them. But if the majority of the population is actually against this law, provided they “download” and “pirate”, shouldnt we change the law to accomodate the will of the people?
The fact that IP exists is basicaly a proof that the present “democratic” system is a failure.

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Kerem Tibuk July 21, 2010 at 7:45 am

Bala,

Everyone that knows you are long time IP socialist, also knows that you are not sincerely asking for definitions but playing the semantics game. If you were sincere people would try to sincerely define concepts.

Some concepts maybe hard to communicate but everyone knows what is conditional exchange and what is exchange of full ownership.

Haven’t you watched a movie on DVD and saw what it says before the movie starts, haven’t you read an EULA of a software,. Even if you are that dense that you can not comprehend the contract you are getting in, the market makes sure even the most idiotic consumer understands what they are getting into when they make a conditional exchange contract.

Even the most stupid knows when they rent a car they do not receive full ownership of the car and that is the reason renting a car costs 20 dollars while buying full ownership costs 20 thousand dollars.

Not even the stupidest idiot would ask:

“Well I bought the car for 20 dollars, do you mean I cant sell it, or crash it or burn it? What part of the car I bought is mine and what part of the car is the original owners? ”

Similarly even the most moronic individual knows the difference between the 14.99 dollars copy of Harry Potter and all the rights of the Harry Potter that would cost billions of dollars are not the same thing.

That is why I do not think you are denser than these dense people or the stupidest individual trolling these IP posts, but an individual that is so intellectually dishonest that playing the semantics game.

And Peter,

What you may or you may not do with the book depends on the conditions of the exchange. Can you really not comprehend it? If the owner of the book doesn’t care that you burn the book then you may burn the book. And usually they do not care about it. They also do not usually care that you use the book as a door stop or a device you kill the flies with. What they care about you perfectly know.

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mpolzkill July 21, 2010 at 8:16 am

Tibuk, you just can’t compare a purchased book and a rented car or movie, sorry, it doesn’t work no matter how hard you try.

Unfortunately we do know what we’re already into: a berserker corporatist state.

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Michael McLees July 21, 2010 at 8:23 am

Your response does nothing to counter the argument he’s making. It works perfectly. Anti-IP people say that when you purchase something, hold it in your hands, you are now the perfect owner, able to do whatever you wish. What Kerem is saying is, when Best Buy purchases their stock of CD’s, they are only purchasing certain rights, not for example, the right to copy a single CD 100 times and sell all the copies, keeping the original, so that they may make more copies. If they were purchasing that right, you can bet they’d be paying much more than sticker price for the CD.

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jerry July 21, 2010 at 8:33 am

I think this in fact happens (here in the uk anyway) where if Blockbusters buy a dvd to be rented out at a video store it costs (I think from the price tags I’ve seen on the covers occasionally) about 10 times more than it does to buy it outright at HMV (when of course you can’t show it in public).

There doesn’t seem to be anything particularly problematic or fascist-like about this arrangement.

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mpolzkill July 21, 2010 at 8:39 am

I’m not making any argument and I don’t have to, you guys were already demolished above. What you guys won’t admit is what many blatant statists (like the ones at GM) will readily admit: you forever own the right to make money in the way you were once told you could.

I don’t care what Best Buy does, I’m interested in a free world and how it would work.

If it weren’t for corporatism there probably wouldn’t be any of these idiotic cds for sale.

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Kerem Tibuk July 21, 2010 at 10:39 am

“What you guys won’t admit is what many blatant statists (like the ones at GM) will readily admit: you forever own the right to make money in the way you were once told you could.”

Are you claiming there is no way you can steer clear of a movie. There is no right to make money at all. If you do not wish to interact with the said property, then dont. But you dont want that. You want watch the movie for example and do not care what the person that is the reason that movie exists, wants. You want to copy it and sell it. You claim you have the right to the fruit of someone else’s labor.

That makes you an agressor. And a parasite.

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Peter Surda July 21, 2010 at 10:58 am

If you do not wish to interact with the said property, then dont.

But Kerem, causality stretches to infinity. Oh, I get it, “good” causality is not interacting, while “bad” causality is interacting. The specter of the bad one must have been haunting for quite some time.

RWW July 21, 2010 at 11:04 am

You want watch the movie for example and do not care what the person that is the reason that movie exists, wants. You want to copy it and sell it.

Like most people, I find “piracy” for monetary gain distasteful. But that doesn’t make it criminal.

Michael McLees July 21, 2010 at 12:11 pm

RWW, why do you find it distasteful? If the creator of a movie has no right to prevent you from copying and selling it, one would think such a business deal would be a shining example of Capitalism.

mpolzkill July 21, 2010 at 12:23 pm

McLees,

You don’t actually believe in the strawman you guys invented, do you?

Piracy and bootlegging are idiotic businesses, and some kind of white whale to you bargain basement Ahabs.

Michael McLees July 21, 2010 at 12:36 pm

How is the idea that with IP there will be massive amounts of bootlegging (we call it bootlegging now, but in your world it would simply be called legitimate business) a strawman?

Not only would it be a major concern to anyone looking to invest money in some big project, like Pink Floyd’s Dark Side of the Moon, for example, but such business operate now. We call it counterfeiting, bootlegging, etc… And while you say it’s not good business, there’s a reason it happens. The bootlegger has not invested a dime in the production of the ideas he’s copying, so while the original author needs to sell CD’s for 9.99 to turn a profit, the bootlegger can make a profit at 99 cents.

Such an idea is neither a strawman nor a white whale, and when it comes to hunting for bargains, who is looking for bargain basement prices, the shopper who goes to iTunes or the shopper who goes to a Torrent website?

mpolzkill July 21, 2010 at 12:46 pm

You just freaking suggested that we consider pirating to be great capitalism! I would never sell a pirated object, would never buy one, would have nothing but contempt for a person in any way involved in such an idiotic business.

You (as a group) basically say that we take our position *so* that we may make a living off of whatever crap you might think of. Or so that everyone may equally share in whatever profits are conceivable due to your ideas. This is a giant and idiotic strawman.

It is all so insulting and wrong from the start that I don’t take anything you say seriously.

Get whatever you can from your ideas without the help of the State and more power to you.

Your ideas about what Pink Floyd might do are hampered by your tiny imagination. Another hilarious thing about every “IP” believer I’ve heard.

RWW July 21, 2010 at 12:50 pm

RWW, why do you find it distasteful? If the creator of a movie has no right to prevent you from copying and selling it, one would think such a business deal would be a shining example of Capitalism.

There’s more to my personal opinion of people than whether or not they are criminals.

mpolzkill July 21, 2010 at 12:51 pm

Idiotic and sleazy. You guys are as bad as the bonehead statists who think we just want to visit hookers and shoot heroin, or worse yet sell them more freely.

Michael McLees July 21, 2010 at 1:01 pm

If IP doesn’t exist, why isn’t it great business to copy an idea and sell it for pennies? And if IP doesn’t exist, why is such a business sleazy? Strange how you claim the author of a work has no right to prevent the pirate from making cheap copies and selling them on the street corner, but would you ever buy from the pirate?

“Oh no, not in a million years, that would be sleazy and I feel insulted just because you asked!”

Why the sudden hesitation to be caught mingling with pirates?

mpolzkill July 21, 2010 at 1:15 pm

I refer you to the comment just above, about drugs and hookers, god…

He has every right in the world to prevent it, other than assaulting him or getting goons to do it for him (for a healthy cut, and *if* the goons don’t think the sleazeball is the better one to cut a deal with).

Michael McLees July 21, 2010 at 1:18 pm

And how do you propose he prevent it? Remember, we’re in a world where he has no right to do so…

mpolzkill July 21, 2010 at 1:24 pm

He has *every* right, as I just said…damn. See, this is where your complete lack of imagination comes in. This is why you guys always make me laugh; well I would laugh if the only thing you (en masse) can think of didn’t create this Leviathan on my back.

Michael McLees July 21, 2010 at 1:53 pm

So the author has “every right” to prevent a pirate from selling a good he has every right to sell. Sounds to me like your logic is collapsing.

mpolzkill July 21, 2010 at 2:18 pm

Every right but assaulting him, yes.

Where?

Michael McLees July 21, 2010 at 2:24 pm

Well, would the author have the right to take the pirated copies off the street by setting them on fire?

mpolzkill July 21, 2010 at 2:37 pm

No.

Michael McLees July 21, 2010 at 2:42 pm

Why?

mpolzkill July 21, 2010 at 2:43 pm

That’s assault.

Michael McLees July 21, 2010 at 2:46 pm

It isn’t. It’s destruction of non-property.

mpolzkill July 21, 2010 at 2:52 pm

The chanting of these mantras by your side has failed to convince me. But those who resort to force are never very good at reasoning. Good luck being a junior partner to the State.

Michael McLees July 21, 2010 at 2:59 pm

What a loser response. First you lash out (“How dare you claim I support piracy?!? All I’m doing is making piracy legal!!!”), then your logic breaks down (I as an author have a right to prevent a sale by a pirate who has every right to make a sale, because he’s selling something I can’t own. Oh by the way, I have “every right” to prevent the sale, but no right to do any physical action which might prevent the pirate sale because that’s “assault”.), and finally call me a Statist.

I’ve been on the up and up with you; you’ve been trolling me.

mpolzkill July 21, 2010 at 3:05 pm

I don’t support drugs or prostitution either, oh slow one.

You can do physical things to prevent the sale, just not assault. I’m not your mommy, I don’t have to (nor can I) tell you how to make a living. And the State isn’t your daddy, it’s going to get more out of you than you bargain for (and then get me too, that’s my concern).

That’s quite a trolling job, answering all of your questions that I can. Good on me. Loser response? Garbage in, garbage out.

And on “statist”, I think that is an unfortunate definition everyone uses, it’s become “totalitarian” for some reason. Mine makes more sense.

State=State

ist=supporter

Statist=you

Michael McLees July 21, 2010 at 3:15 pm

OK then, question answerer…

1- What physical things may I do?
2- If the pirate has a right to sell the works (because I have no ownership rights in them), how can I have a right to prevent him from selling the works?

mpolzkill July 21, 2010 at 3:19 pm

Oh, and you’re not on the up and up. An interesting display of projection here: I never lashed out, I’m bemused by you strange creatures calling us these wildly wrong things. If anyone, it was you that lashed out, and to paraphrase: “How dare you claim you don’t support piracy?!? All you’re doing is making piracy legal!!!”

I can not help your ignorance, it’s not my responsibility to cure you of it, and by the looks of you I wouldn’t want to try.

mpolzkill July 21, 2010 at 3:21 pm

1 and 2:

By any way other than assault.

[I know, I know, Abbott and Costello we ain't]

Michael McLees July 21, 2010 at 3:21 pm

Questions: 2

Answers (so far): 0

mpolzkill July 21, 2010 at 3:32 pm

Try this, dummy, you come up with an idea short of assault and run that by me.

mpolzkill July 21, 2010 at 3:28 pm

Yeah, I think it was clear some time ago, I’m not going to tell you how, I just believe you have the right to do anything short of assaulting him.

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Michael McLees July 21, 2010 at 3:45 pm

Name calling… hmm. Seems like a pretty shady way of arguing, but let’s see how this goes.

First, let’s define assault. I know that in the strict legal philosophy sense, you’ve got no idea what it is, so I’ll grant you a more common definition.

How about: Violence against an innocent party.

Ignoring the obvious, that the party I’m going to “assault” is not an innocent party (because he’s a pirate, and therefore subject to my preventing his sales), let’s see how far we can get. I would like to wait until his pirate booth is unattended, walk over, grab his pirated products, and light them on fire in my fireplace. I have not assaulted the pirate and I have prevented the sale of the pirated works.

mpolzkill July 21, 2010 at 4:22 pm

1 We’re not arguing. You’re trying to convince the world of the reality of “IP”, and failing, and you’re asking me how to make a living selling things. I’m having a small laugh because you’re too dumb to do anything else with.

2. You assumed the guilt or innocence. None of you have ever given an acceptable definition of “IP” as actual property. Not legal, but maybe by the standards of your State, if it’s in their interest, as I said.

3. So you’re done, you can not think of anything short of assault. That proves my point about your lack of imagination.

4. Calling someone a dummy is a very human way of showing exasperation with a dummy.

Michael McLees July 21, 2010 at 4:35 pm

This is my last reply to you here. I’ll let your posts speak for themselves.

mpolzkill July 21, 2010 at 4:39 pm

What replies? You were asking the questions. You were making the assertions. Yeah I’ll let ‘em speak for themselves too. Dumb questions, bald assertions, dumb answers. It’s been real.

jerry July 21, 2010 at 8:47 am

So in this “free world”, how would we rent cars for a day? Can we?

If not, why not?

If so, am I the “owner” of the car for the day? Can I set it on fire? Presuming you think this is stupid, what are the foundations then for the restrictions that are on my behaviour for that day?

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mpolzkill July 21, 2010 at 9:01 am

I can’t predict the future, and I’m not in the car rental business, I don’t know exactly how every different company would rent cars in a free world. I am interested in the subject and theories on these types of things, that’s why I hang around here.

You bet.

No.

No.

Yeah, pretty stupid, sorry, but I *do* understand the lengths to which you guys must go: (Bala already did this nicely, but what the hell) The foundations, here in the Western World, are that the person who owns the car owns the car and you must return the car since you’re not the owner but a renter. If he is sane, he will not rent you a one of a kind prototype car and he will not tell you to refrain from studying or taking pictures of the car, yada, yada, yada.

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gdp July 21, 2010 at 2:52 pm

As I see it, the “Covenant Of Unanimous Consent” is a contract, not a literary work. Contracts are not considered protected under copyright law since it’s entirely reasonable that two individuals engaging in a similar transaction or agreement will draw up a similar contract to govern said transaction or agreement — and indeed, “boilerplate” legal language is used to draw up contracts all the time, without accusation of “plagiarism.”

If all contracts were considered “protected by copyright,” then after the first time Roger Roe contracts with John Doe to deliver 100 bushels of wheat in exchange for 1 oz of gold on Oct-01, it would become “theft” for any other pair of persons to contract to exchange 100 bushels of wheat in exchange for 1 oz of gold on Oct-01 — which is an obviously absurd position.

Note finally that the entire argument is the notoriously futile “How many words of Shakespeare must be changed before it is no longer Shakespeare?” argument. “West Side Story” by Laurent and Bernstein has substantially the same plot as “Romeo and Juliet;” would it therefore follow that Laurent and Bernstein therefore “plagiarized” from Shakespeare and owe Shakespeare’s estate restitution, or did they create a similar but unique work inspired by and a homage to Shakespeare?

The “Shire Declaration” is not word-for-word identical to the “Covenant of Unanimous Consent,” or even item-for-item similar; they are different but similar contracts, created by different but similarly-motivated persons for different but similar purposes.

There is no question that the authors of the “Shire Declaration” were inspired by L. Neil Smith, since the original text appears online with full attribution to L. Neil Smith, in accordance with the generally accepted principle of “Fair Use.” However the subsequent detailed public debate, modification, and editing process leading from the “Covenant of Unanimous Consent by L. Neil Smith” to the final draft of the “Shire Declaration” — the actual process of the “mixing of labor” with digital bits to create a new and unique work — are also a matter of public record. If the “Shire Declaration” is “plagiarism,” then it must also follow that the members of the 2nd Continental Congress “plagiarized” from Thomas Jefferson when they edited the first draft of the Declaration of Independence into the final draft, and that Jefferson conspired with them to “plagiarize” from himself — again, an absurd position.

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Cathy Smith July 21, 2010 at 6:23 pm

Stephan Kinsella, Jeffrey Tucker, and others, present their contemptuous dismissal of intellectual property as though it were a fait accompli. Not only is that not true, it is an issue that is currently hotly debated even within the freedom movement. It seems suspect to me that advocates of freedom would decide to strip certain of their fellows of moral rights merely because the state (and by extension creatures of the state such as corporations) cannot be trusted to behave with regard to the rights of individuals.

First and foremost, the Covenant of Unanimous Consent is a literary work. It appears in a novel (and that attribution appears on the document that became the basis for the shire’s declaration). The fact that it exists in a copyrighted novel extends the copyright to the excerpted page. I will point out that the copyright mark is no longer required, so it’s absence is not a justification for the appropriation, nor an invitation to disregard it provenance. (It also happens to be a social contract which appealed to the sensibilities of those who decided to sign it and thereby demonstrate their “good faith” credentials to one another.)

The folks of the shire (without any form of communication to the author of the document they claim to so admire) pasted the document into their website and went to work on it. Pasting it into a website does not constitute disclosure unless you’re going to claim that anyone who posts anything on the web has an obligation to continuously troll cyberspace to hunt down activity related to items to which they hold the copyright.

The document that resulted from their “modifications” is indeed different, but it retains a certain “unique arrangements of words” used to convey the ideas of the original work. A fact that few seem willing, or able, to recognize is that the claim is not on the idea of liberty, nor on the idea of a social contract, but on the “unique arrangements of words” used to convey the meaning of the original document. If you doubt the uniqueness of the phrasing, try this little experiment: enter these words, including the quotation marks, into your web browser and see what you find.

“We the undersigned, Witnesses to the Lesson of History — that no Form of political Governance may be relied upon to secure the individual Rights of Life, Liberty, or Property — now therefore establish and provide certain fundamental Precepts measuring our Conduct toward one another, and toward others:” …

You will find the original document (reproduced in several places without changes and with full attribution), and the modified shire declaration which retains the first two paragraphs of the document (unchanged and with no attribution). It doesn’t seem unreasonable to assume that the casual observer would conclude that the author of the first document implicitly sanctions the subsequent (modified) document — particularly in the absence of any attribution of the parent document. Those who have followed this controversy know by now, if they didn’t know before, that this is a conspicuously unwarranted assumption.

A good and decent person who has contributed a valuable body of work to the freedom movement is currently under vitriolic attack by those who do not wish to exercise their own creative energy, but prefer to usurp the creativity of someone else. They have plastered the web with false assertions — “L. Neil Smith is a statist asshole” — because he mentioned he was sending a copy of his correspondence to his attorney. (Since Mr. Kinsella is also an attorney, does his involvement extend the epithet to the side on which he chooses to reside?)

Names that one typically hears from the mouths of publicly-schooled teenagers — but doesn’t really expect to hear in conversation among people who claim to respect their fellow beings — are hurled about because the victim refuses to grant his sanction. There’s been ridicule over being concerned about the economic impact on a man and his family. (Since when has that become a reason for ridicule within the freedom movement?) One person even expressed the opinion that since the document wasn’t on the front page of his website, it had no [economic] importance and therefore further justified their actions.

It now appears that life in a free society (if current trends prevail) will require one to have strict contractual agreements with everyone, and with respect to every activity in which they engage. It has been clearly demonstrated that one cannot rely on mutual respect, or even good manners.

If you have an idea you think is important, best keep it to yourself.

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Michael McLees July 21, 2010 at 6:40 pm

This post has inspired me to purchase some L. Neil Smith works. Not as charity, but as value for value exchange.

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Peter July 21, 2010 at 10:13 pm

The difference is, Kinsella’s “contemptuous dismissal” (which is in no way contemptuous, AFAICT) comes with a logical and compelling argument to back it up. Most of us on the anti-IP side used to be pro-IP…Stephan notes that he tried for years to find a justification for IP, before reluctantly concluding that there wasn’t one. The pro-IP position, on the other hand, comes as a bald assertion with a lot of insults. (E.g., there were more insults directed at his opponents in Neil’s “article” than all the (public) missives directed at him … and very little else).

It seems suspect to me that advocates of freedom would decide to strip certain of their fellows of moral rights merely because the state [...] cannot be trusted to behave with regard to the rights of individuals.
Clearly you haven’t even bothered to read the argument, if that’s what you think is being said.

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RWW July 21, 2010 at 11:53 pm

Stephan Kinsella, Jeffrey Tucker, and others, present their contemptuous dismissal of intellectual property as though it were a fait accompli. Not only is that not true, it is an issue that is currently hotly debated even within the freedom movement. It seems suspect to me that advocates of freedom would decide to strip certain of their fellows of moral rights…

What a wonderful sense of irony, to complain as you have about the anti-IP argument (which has, in fact, been presented very carefully in Kinsella’s writings) in this way, and immediately proceed to speak of the “moral rights” to IP as a fait accompli.

The fact that it exists in a copyrighted novel extends the copyright to the excerpted page.

According to your government.

I will point out that the copyright mark is no longer required…

By your government.

A fact that few seem willing, or able, to recognize is that the claim is not on the idea of liberty, nor on the idea of a social contract, but on the “unique arrangements of words” used to convey the meaning of the original document.

This is either an embarrassing straw man, or a strong indication that you haven’t bothered to read the arguments against your position. I mean, really, this is just pathetic.

It doesn’t seem unreasonable to assume that the casual observer would conclude that the author of the first document implicitly sanctions the subsequent (modified) document — particularly in the absence of any attribution of the parent document.

Why would an absence of visible attribution be evidence that the author of the first document sanctions the other? What kind of backward logic is this?

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Stephan Kinsella July 22, 2010 at 8:33 am

Ms. Smith doesn’t have a careful or coherent argument here, really. It’s not her fault–in trying to come up with some semblance of a libertarian justification for IP she is making her scattered, disjointed arguments because … there are no good arguments for IP. She’s seeing what I did when I tried to justify IP: it can’t be done.

Her, and L. Neil’s, inability to mount even the semblance of a coherent defense of IP is indeed good evidence that we are right to claim that we have won this debate. Most libertarians are IP for a reason: because they have started to look at this issue. Once you do, you realize that the defenses given of it to date had been largely unexamined and when you do examine them, they evaporate.

I mean no offense to the Smiths.

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Donald Rowe July 22, 2010 at 4:12 pm

I am having trouble with the concept being discussed and I would like a little help, if that is possible.

Under the theoretical condition of there being no accepted law regarding intellectual property rights in any way, all existing laws having been voided because there can be no such rights established due to the inherent nature of intellectual property is it the case that the following occurs? The originator of the intellectual property in question is thereby restricted in his ability to restrict access to his creation by the sole method of retaining the creation entirely within his head. Any leakage therefrom, even if he talks in his sleep, that may occur has the effect that his efforts in the production of his creation become freely available to anyone, anywhere at any time and may be used for their benefit. Further that any note made on paper must remain folded because if opened and laying on the top of his desk the light reflected from its surface will contain information about the creation to which he wishes to restrict access. Is that right so far? He must make a coarse grained, binary, decision about sharing his creation. I have read a lot of words about all of this but I have not yet been able to form any coherent concept from them yet. It would also seem to mean that any and all recipients of the creation, or information about the creation, have unfettered rights to then distribute that creation in any manner, at any time and any place they so choose and they also have the further right, by default, to retain for themselves any and all benefits to be derived.

I must be missing something important that was in the discussion elsewhere, because I fail to see any beauty and symmetry in what I have just described. It just doesn’t feel right.

Thanks for any help you, or anyone else can provide.
Cordially,
Don

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Michael McLees July 22, 2010 at 5:27 pm

You have it right. The anti-IP’ers would say, “Your feelings are irrelevant.”

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Peter Surda July 22, 2010 at 10:26 pm

The originator of the intellectual property in question is thereby restricted in his ability to restrict access to his creation by the sole method of retaining the creation entirely within his head.

The originator has many non violent options at his disposal to increase the amount of benefits derived from his idea, for example: contracts, deception, dumping, cost accounting, product lifecycle management, marketing, bundling, vendor lock-in, vapourware, standardisation, trusts.

Even with IP laws, since causality extends to infinity, it is impossible to ensure you can reap full benefits of any action or idea whatsoever.

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Donald Rowe July 23, 2010 at 7:36 am

Michael, my feelings actually are irrelevant but not exactly in the context you have presented. This is not an us against them situation. We are all creators, potentially at least, and simultaneously we are all beneficiaries of those creations, even if only at the end of a long chain of transformations.

Those who argue that there should be, or perhaps can be, no property rights vested in virtual objects have a very good point. Many contributors are making salient points about that here. I assume we all share the goal of shaping the future in a fashion that allows and encourages the optimum production of ideas and concepts and that they are allowed to be put to their best and maximal uses by everyone. By everyone, I mean exactly that. Not every American, and not every insert the name of your favorite group here. It is best if there are feedback loops between the producer and his users, both negative and positive, and we should try to make the feedback as direct as possible because excessively loopy loopbacks just aren’t pretty.

So far, all I have been able to find in the development path is what looks like a severing of the positive feedback loop. I don’t think this will help us achieve our goal. If we establish a set of procedures where all creators have to do backflips and handstands to assure they can garner any reward from their efforts, that would be the equivalent of automatically and arbitrarily increasing the volume in the negative feedback loop. I would have to be persuaded as to why that was an optimum solution.

When I talk about feeling right I am referring to feelings about the system, in its entirety, that is proposed to be brought into existence, because that must feel right to all parties of all persuasions and biases, before it is implemented. Or it will fail.

It is as though the jigsaw puzzle has some pieces missing. I was hoping that I simply missed out on that whole part of the discussion so I would not have to create it myself. Why reinvent the wheel, my granddaddy used to say.

Cordially,
Don

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Michael McLees July 23, 2010 at 8:14 am

Don’t worry; I’m with you on this. The anti-IPer will simply say, “Your utilitarian and consequentialist arguments are irrelevant.” We may disagree with that sentiment, but it does serve to steer the debate into a higher realm, where rights are not merely created as a means of progress, but exist simply because morality demands it.

Donald Rowe July 23, 2010 at 10:21 am

Micheal,
Utilitarian and consequentialist arguments are irrelevant. But only when the theory in question achieves that necessary level of perfection. The fact that those arguments can legitimately be made is the red flag to indicate that the theory has not attained that perfection.

The are pieces still laying on the table.

Cordially,
Don

RWW July 22, 2010 at 12:01 am

You know, one of the worst aspects of this whole matter has been seeing how poor L. Neil Smith’s reasoning is, and now we’ve sadly seen the same of Cathy Smith. You folks could take some lessons from Sasha Radeta in this thread; while I disagree with his position, his arguments at least demonstrate a depth of thought.

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TokyoTom July 22, 2010 at 3:12 am

Jeffrey: I’m all for discussing this further, but with a little more charity than you offer to L. Neil Smith, who understandably “painted himself into a corner” as a result of an emotional over-reaction to insensitive and insincere actions by FreeTalkLive radio show host Ian Freeman and others of the Shire Society.

Your strawman doesn’t help; far from insisting that he owns all of his ideas, it’s clear from his references to “plagiarism” that Smith thinks he is simply protecting what he regards as his legitimate interests in a particular expression of his ideas.

I’ve expressed some of my thoughts – on property and copyright, and on community, respect and persuasion, in greater detail on Stephan’s thread; here’s a start:

http://blog.mises.org/13277/the-l-neil-smith-freetalklive-copyright-dispute/#comment-701808

But let me note that even while I see holes in Smith’s arguments (as well as in arguments by others), I feel that his reaction – that the Shire Society stepped on his toes – was completely understandable even if one rejects his position on IP (which, after, all is largely the conventional legal view that presently prevails).

What we consider to be legitimate “property” is quite malleable, differs from society to society, and is something that we defend fairly reflexively (especially when we see our own “rights” threatened, while those doing the threatening are quick with rationalizations, as Smith notes). It’s entirely natural that Smith, having grown up with these rules, would take umbrage when he feels the rules, his “rights” and the moral order have been breached, and at his expense; age and society have a way of making conservatives out of most of us.

My modest suggestion is that those who wish to change how others think about IP consider more deeply how societies establish rights, and show a little more sensitivity to the sensitivities of others who have accepted conventional views of IP and have not yet reconsidered them. If one wishes to move away from statism, it hardly seems effective to so by starting off the “conversation” by first stepping on the toes of others and then thumbing one’s nose at them. (In the podcast, Ian Freeman’s co-host, Mark Edge, rightly upbraided Freemen on this, and Freeman, it seems, felt at least some chagrin.)

Regards,

Tom

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Stephan Kinsella July 22, 2010 at 8:34 am

“was completely understandable even if one rejects his position on IP (which, after, all is largely the conventional legal view that presently prevails).”

the parenthetical is not much of a save–we libertarians don’t usually follow conventional legal ideas!

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TokyoTom July 22, 2010 at 10:10 am

Stephan, the parenthetical is simply a reiteration of Jeffrey’s point: “I would suggest some charity here for Mr. Smith. He says that he hasn’t thought much about this topic, and … truly this is a hard subject for libertarians. They’ve been misled for many years, even decades, by sloppy thinking on the topic. It takes a long time to think through all the implications.”

Those seeking to persuade others to move away from the state would do well to approach others – especially someone who would be a useful convert – in an open, non-hostile manner.

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TokyoTom July 22, 2010 at 10:09 am

Stephan, the parenthetical is simply a reiteration of Jeffrey’s point: “I would suggest some charity here for Mr. Smith. He says that he hasn’t thought much about this topic, and … truly this is a hard subject for libertarians. They’ve been misled for many years, even decades, by sloppy thinking on the topic. It takes a long time to think through all the implications.”

Those seeking to persuade others to move away from the state would do well to approach others – especially someone who would be a useful convert – in an open, non-hostile manner.

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Peter Camper July 24, 2010 at 11:41 pm

I’m confused. Where does IP come into your rant? You have a problem with an author claiming ownership of his work? As a programmer-at-arms for two decades, I take offense to that concept.

Perhaps you’d come across more effectively if you’d stop raving and start communicating.

Just a thought. . .

-Pete

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Iloilo Jones September 15, 2010 at 4:12 pm

Wrote some comments on your confusion of concepts with individual human productivity here:
http://feralfae.com/2010/09/theft-of-intellectual-property/
and just wanted to let you know.
imj

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