What inference should I draw if *anti*-IP libertarian advocates make obviously flawed arguments in support of their position? Malicious intent as well? I invite everyone to follow the link Stephan posted above and jump to his comment at October 11, 2006 12:44 PM and my follow-up at 12:56 PM of the same day, where he concedes, and I point out his concession, that at least one of his arguments is in clear error, regardless of the validity of his conclusion.

Specifically, IP claims cannot be rejected on grounds of idea non-scarcity because they make claims to the use of scarce objects, and still constitute a conflict of desires between actors. You can, of course, reject them on other grounds, but not that one. This essentially voids pp. 23-31 of Stephan’s seminal work and his consistent repetition of “IP can’t be property because it isn’t scarce”. Yet he dodges the matter whenever confronted.

Is he getting sinister funding as well?

Before I go any farther, no ad hominems from either side, PLEASE.

It is a very touchy area, that we are stepping into here. BTW, I am not limited my comments to the issue of IP, but to ALL issues.

Check out this link first, from CATO.

http://www.cato.org/sponsors/sponsors.html

It looks quite….corporate….doesn’t it. No, I am not launching into anything about “corporations are bad” or anything like that. But we should understand human nature. Money DOES talk. I don’t think anybody here is naive enough, or foolish enough, to think that these companies are donating all that money out of the purity of their hearts or their interest in the free market. These large corporations are necessarily mercantilist by their very nature. They are not interested in a free market. They are interested in maintaining an advantagist mercantile enviroment. CATO must realize this, and this very realization can be subliminaly damaging. They deep down know why that money is flowing and their work is corrupting to keep the money flowing.

I like CATO. Before I became more deeply Austrian, CATO was probably my prime reference point for pretty much everything. But I have seen the direction CATO is taking and it isn’t good. I will continue to consult CATO, along with Mises, LRC and others, but I will do so with a watchful eye.

Person, I partly agree with you…but partly with Stephan 🙂 On another discussion forum I used the argument that IP is inconsistent with property rights to tangible things. This seems to me quite straightforward and it appears to be quite hard to counter attack (unless one believes that property rights are defined by governments).

On the other hand it seems to me that non-scarcity CAN be used as an argument, but it is much simpler to attack with probably incorrect, but hard to counter arguments (I may be wrong though 🙂 )

It is impossible for 2 or more people to use a scarce thing. Thus, we need a system that would allow us to decide, who will have access to the scarce resource and who won’t. We have decided for property rights, but there are other possibilities (government, majority, power, physical presence). In general, though, the society is not restricted in any way – the law decides WHO can use the resource, but does not limit the use of the resource – it is physically limited by scarcity and who can use the resource would have to be decided anyway.

Trivially, this does not apply to the IP. IP, unlike traditional property rights, poses artificial limits on the society without any sensible justification.

We promote liberty. Which basically means that you can do whatever you like. ‘Scarcity’ is an argument why you are not allowed to do some things. You cannot use this argument for IP and I just cannot find a good, non-arbitrary argument that could support it. Thus, I believe, IP is contradictory to liberty, while property rights are not.

Stephan: I know you worded it very carefully…however I still prefer reading correct arguments instead of ad hominem 🙂

We have decided for property rights, but there are other possibilities (government, majority, power, physical presence).

But all of those other possibilities lead to more conflict, not less. The libertarian property rights “decision” is the only one consistent with peace.

Person, you have never to my knowledge, answered my question in previous posts, as to why IP protection has never been created by market forces, spontaneosly. Why is it that the state must always pick up this “market deficiency”?

Why is it that there is no concept of IP when there is no printing press?

Careful, Stephan. You’re stepping onto the same thin ice that those envirowackos do when they whine that major fossil producers and users are funding many of the pundits/think tanks that minimize the climate change science and oppose any measures to forestall climate change!

But of course you’re onto something. Firms fund think tanks to advance their own self-interests, and think tanks have incentives to cater to those who feed them. Of course there need not be any iron link, but one can see which way the incentives lead. When weighing what others have to say in discussions on complex topics, it is always helpful to understand what the speaker’s possible financial interests may be.

Person

“….because they make claims to the use of scarce objects,”

Please define these scarce objects that IP make s claim to.

“… and still constitute a conflict of desires between actors.”

Who cares. I’m sure that there are lots of behaviors I can do that will not be what you desire. Property rights are not about feelings.

PS: I red your refferal, I didn’t see a concession anywhere.

quincunx:Person, you have never to my knowledge, answered my question in previous posts, as to why IP protection has never been created by market forces, spontaneosly. Why is it that the state must always pick up this “market deficiency”?

And you have never to my knowledge, answered my question in previous posts, as to why property protection has never been created by market forces, spontaneosly. Why is it that the state must always pick up this “market deficiency”?

David_C:

“….because they make claims to the use of scarce objects,”

Please define these scarce objects that IP make s claim to.

Paper, ink, etc. When Bob claims the IP rights to the book “Hunting the Wumpasaurus”, he is making a claim on how he believes the (scarce) ink and paper in the world should be used. HEY Before you respond without thinking, please take note: I didn’t say his claim was valid. I didn’t say I support that claim. I’m just saying that that is a claim on scarce goods.

“… and still constitute a conflict of desires between actors.”

Who cares. I’m sure that there are lots of behaviors I can do that will not be what you desire. Property rights are not about feelings.

Of course. But I’m not proving a property right. I’m disproving a disproof of a property right — specifically, Stephan’s claim that “IP isn’t scarce”. Obviously, IP claims involve a conflict of desires and thus involve exactly the same kind of scarcity as everything else. HEY Before following in others’ footsteps and making another irrelevant comment: I didn’t say that this means IP rights automatically get validity, just that they can’t be dismissed on grounds of idea non-scarcity.

PS: I red your refferal, I didn’t see a concession anywhere.

Look again. Here’s what happened.

In Stephan’s IP paper, he claims IP rights have a property — call it B — and that this property invalidates them. He also advanced other arguments against IP — call them C, D, E, F.

I said IP doesn’t have B (when applying his terminology consistently). I have said this many times an got insulted many times in response.

In the passage I referenced, Stephan said, and I’m praphrasing “Okay, So IP doesn’t have B. But still, IP is still invalid because of C, D, E, and F.” But if my claim was only that IP doesn’t have B, that’s a concession to my argument.

What is B? That IP rights aren’t claims in scarce goods.

andy: My whole point is that there are different ways one can mean scarcity. The example I use is this: A fertile field can be used for growing crops AND sleeping in. One use does not conflict with the other. Yet a farmer can still come into conflict with someone who wants to sleep in the field, in that he *doesn’t* (for whatever reason) want anyone sleeping in the field. Has he created an “artificial scarcity”? If no, you concede it’s not “artificial scarcity” for an artist not to want (scarce) goods related to their idea to be used in certain ways.

“And you have never to my knowledge, answered my question in previous posts, as to why property protection has never been created by market forces, spontaneosly.”

Interesting. First came the state then came property protection. OK. Apparently your knowledge does not correspond to the record.

You must publish your insights immediately!

Violation of copyright is a violation of contract and theft of property!

And this regardless of state laws. If someone sells his property to a person under the condition that the buyer has no right to copy it, the buyer has all rights to the property except the right to copy it. That is, as long as the property is a physical object and is alienable. To find out more on this position go to; (http://www.mises.org/rothbard/ethics/sixteen.asp).
Björn Lundahl
Göteborg Sweden

Person,

…”Paper, ink, etc. When Bob claims the IP rights to the book”…

Just because information can attach to scarse goods, does not mean that scarse goods are attached to information. It’s the latter (information) that’s trying to be controled here, so why argue the former?

… “Of course. But I’m not proving a property right. I’m disproving a disproof of a property right” …

Actually, this beggs the question, why aren’t you trying to prove IP is a property independent of the things it attaches to? In fact, I wouldn’t even ask you to prove it’s a right, just a property. That’s your assertion, right?

… [ to paraphrase ] … Stephan said B, Person said not B, Stephan said OK (aka Person) but so what XYZ still proves point, Person said Concession …

So is it concession or digression? the end in itself is not the semantics of the debate, but wether it is just to use the coercive power of government to restrict what I can copy. Even if he was wrong on the former, he sure doesn’t seem to be on the latter.

… [ to paraphrase ] … bum sleeps on field and interferes with farmer … Has he created an “artificial scarcity”?

No, it would only be an artificial scarcity only if he slept on a copy of the farmers field. 🙂

Björn Lundahl,

“Violation of copyright is a violation of contract and theft of property!” … [ reference to see link for further discussion ]

I already did, see here: http://blog.mises.org/archives/005348.asp

A fertile field can be used for growing crops AND sleeping in. One use does not conflict with the other. Yet a farmer can still come into conflict with someone who wants to sleep in the field, in that he *doesn’t* (for whatever reason) want anyone sleeping in the field. Has he created an “artificial scarcity”? If no, you concede it’s not “artificial scarcity” for an artist not to want (scarce) goods related to their idea to be used in certain ways.

I would say it MAY conflict with the other. The “empty” field is a use as well as field with some sleeping bags. I think in Norway, they approach it differently – you may sleep anywhere you want as long as it is at least X km from the nearest building and, of course, you don’t destroy anything.

The conflict over scarce good is of different “order” then the one over IP. The farmer may say “I want the field to be empty”, “I want the field to contain only my friends” and the scouts may want to sleep there. You cannot have both – and still no one needs to say: I don’t want YOU to sleep here.

On the other hand, there is no conflict in “I prefer not using this idea” vs. “You prefer using it”. It is impossible to formulate this “conflict” in such a way that the options are exclusive – without saying “I don’t want YOU to…” – because idea is non-scarce.

Accepting “I don’t want YOU to” as rightful would be contradictory to self-ownership, wouldn’t it?

I am just now at home and having my lunch and I have only a few minutes left! But I will try anyway.

I quote from page 123, The Ethics of Liberty;

“A common objection runs as follows: all right, it would be criminal for Green to produce and sell the Brown mousetrap; but suppose that someone else, Black, who had not made a contract with Brown, happens to see Green’s mousetrap and then goes ahead and produces and sells the replica? Why should he be prosecuted? The answer is that, as in the case of our critique of negotiable instruments, no one can acquire a greater property title in something than has already been given away or sold. Green did not own the total property right in his mousetrap, in accordance with his contract with Brown—but only all rights except to sell it or a replica. But, therefore Black’s title in the mousetrap, the ownership of the ideas in Black’s head, can be no greater than Green’s, and therefore he too would be a violator of Brown’s property even though he himself had not made the actual contract”.

http://www.mises.org/rothbard/ethics/sixteen.asp

Björn Lundahl

Physical property rights arise out of the ability to control physical objects. As long as I am responsible enough with my property to lock it up and keep an eye on it, any one who wants to use it in a fashion I don’t condone is soon going to have to deceive me, coerce me, or damage my property in some way. Deception, coercion and damage of valuable goods are all destructive to the mutual trust which forms the bedrock of a peaceful society. Such behavior has to be severely discouraged by any healthy community, so we get property rights almost for free.

On the other hand, if I publish an idea in a public forum, it can be used without my consent, without my even ever knowing about it. In order to simulate property rights for intellectual products, it is necessary for a community to impose much finer-grained control over its members. To control the use of an idea, it is necessary to control people’s thoughts and communications. This is why the RIAA monitors network traffic so assiduously, and it’s why Sony felt entitled to rootkit its customer’s machines. I’m not a libertarian, myself, but such impositions seem entirely antithetical to my understanding of libertarian values.

Eli Lilly needs to get a grip on it’s outstanding zyprexa personal injury settlement claims

Daniel Haszard zyprexa caused my diabetes http://www.zyprexa-victims.com

Björn Lundahl:

Simple answer: Just as Mises demonstrated a peculiar blindness when it came to government, Rothbard was strangely inconsistent when it came to copyright theory. His statements about not having “the total property right” to the object are incompatible with his statements about property rights in other goods.

Under title-transfer contract theory there are two ways of selling restricted access to a piece of property: one can sell the property itself (primary ownership, including all rights), but establish a system of contractual fines should the restictions be violated, or one can keep the primary ownership and grant only an easement (possibly with a similar system of fines for specific violations). Either way the seller has no claim on third-party copiers, as only trespass — violation of property rights — can serve as grounds for a claim of tort. Simply observing a pattern and making a copy does not change the original at all, and thus cannot be trespass any more than operating a radio could be considered trespass against (unaffected) property in the area.

Summary: There is no such thing as the “right to make a copy”, and no such right is needed, because, by itself, the making of a copy does not violate the logical boundaries of (trespass against) the original object.

Big Pharma is run by folks who would’ve been excellent senior party officials in Stalin or Mao’s regime. Focused on power and unearned wealthy, they lie, plunder and bribe as necessary, and at whatever cost. These are the kinds of folks who see Narnia or Lord of the Rings and root for the witch or golum.

Bush’s multibillion buck BigPharma subsidy is but one example.

Another is the nonstop pressure on docs to prescribe more and more meds for conditions that don’t require them (or for which there are homeo/naturopathic alternatives) is another example. (My pediatrician and I regularly argue about this. “Hey, my kid got a C on this quiz.” Doc: “No problem, I’ll get some Ritalin to control the behavior and some Prozac to help the kid overcome self-esteem issues. Oh, and since prozac will constipate a bit, I’ll toss in some stuff to make bowel movements easier.” Me: “Drop dead.”)

The cooperation with gov’t to spread falsehoods re various diseases (through control of regulatory channels and research-grant making foundations). Whether it be HIV mythmaking or Cholesterol myth making, the result is the same: putting a patient on LIFETIME meds that pack a powerful 60-95% profit margin. Now that’s a cure for lagging profits! Better than viagra. Wooohoo.

The cooperation with gov’t and courts to stop plaintiff’s attorneys from bringing BigPharma to justice.

So, yes, Stephan, I see the funding of “libertarian” orgs by BigPharma as something to wary of. Sure, some of the research may be good, i.e., evil FDA hampers research, yada yada, but much of it is bad. As Rand (and murray and mises, et al) said: ideas win in the longrun. BigPharma is out to make sure the wrong ideas get funding while the right ones are relegated to blogs.

But that makes sense, because, as you know, corporations are bad.

Björn> And this regardless of state laws. If someone sells his property to a person under the condition that the buyer has no right to copy it, the buyer has all rights to the property except the right to copy it. That is, as long as the property is a physical object and is alienable.

Jesse> Either way the seller has no claim on third-party copiers, … There is no such thing as the “right to make a copy”, and no such right is needed, because, by itself, the making of a copy does not violate the logical boundaries of (trespass against) the original object.

Two parties could make a valid contract to prohibit copying, and do so completely absent the state or its rules. The would-be copier would be legally bound to not make copies in that case. This is similar to the non-disclosure contracts that firms and individuals already engage in. However, and as Jesse points out, this has nothing to do with a third party, who has no such contract. Ideas would need to be property if the third party is to be prohibited from copying via the concept of property rights.

Greg

Thank you for your comment. You wrote;

“Ideas would need to be property if the third party is to be prohibited from copying via the concept of property rights”.

Yes I agree and I also wrote “That is, as long as the property is a physical object and is alienable”.

Björn Lundahl

Björn Lundahl & Greg:

So are you both agreeing with me that ideas cannot be property, that copying alone does not infringe any property rights, and thus that only direct, voluntary contractors and not third parties can be fined (as per the contract) for making copies (or allowing others to do so, etc.)? Or are you arguing that “ideas” (ideal objects, patterns) can be property? If your position is the latter, I invite you to explain your reasoning. As I understand the concept, property rights are defined by ideas (e.g. the limits of a property right in one’s own body are determined by the idea represented by the word “body”), but the rights themselves concern control over bounded portions of the physical world: a specific instance of an ideal type, not the ideal type itself; a specific body, not all bodies.

Rothbard dismissed patents on the grounds that they excluded independent discovery (even where there was no contact with the patented invention or the patent holder) and thus could not be established through contracts — and then went on to present a theory of copyright with the exact same flaw. His treatment of copyrights relies heavily on non-obvious implicit (non-title-transfer!) contracts, in which simply stamping the word “copyright” on a document or invention somehow creates a binding contract with all observers. A contract for what? He argues himself that contracts must consist of transfers of property titles to be enforceable, which the word “copyright” by itself does not do. Furthermore his proposal is formulated as an implicit contract and yet does not meet a necessary qualification for implicit contracts: it offers nothing by which the contract may be deemed accepted. An implicit purchase contract is validated by the fact that each party keeps the other’s (former) property, something they could not otherwise do. A notice on private property is validated by the fact that remaining without accepting the terms would be trespassing. Rothbard’s copyright “contract” has no such mechanism; it demands acceptance and yet offers no rights the observer did not already possess.

“Big Pharma… These are the kinds of folks who see Narnia or Lord of the Rings and root for the witch or golum.”

Well I did root for the witch… but golum??? Golum was a pathetic wretch and not worthy of the admiration of I, Big Pharma.

Buddy, I rooted for Sauron!

But in all honesty what I would have really liked to see happen was Galadriel take the ring from Frodo and lay the smack down on EVERYONE!!!!!11 The good, the bad, the ugly… it don’t matter!

That would have been something worth watching… not this good triumphs over evil crap! The powerful (and ruthless and shrewd and amoral) vanquishes all!

And what’s with the ‘good’ looking so good and the ‘evil’ looking so… well, bad? Hmm… one guy is this horrible monster who’s malformed face is falling off, and the other is a beautiful female elf followed by an aura of light… gee, I wonder who the bad guy is?

What would have been interesting would be seeing the beautiful yet terrible Galadriel mercilessly laying the smack down on human, orc, elf, dwarf, hobbit, ent, troll, wizard, and deity alike… having the audience loath Galadriel, and feel sympathy for the hideous (and ‘evil’) orcs. Now that would be something!

Yes, Big Pharma, we know you like to lay the “smack” down on everyone like some hiphop drug dealer off main street. And it helps to have some “ho’s” help you distribute the “blow” to everyone, hence the value of foundation funding.
Yo yo yo and many bling bling returns.

Avoid using the term “Intellectual Property”. Copyright, patents, and trademarks should not be lumped together and called property they are different from each other and different from physical property. See the link.

I am critical of the current practice of copyright/trademark/patent protection and I believe that the expression“intellectual property” is nonsensical, misleading, and harmful to popular understanding of market transactions. On the other hand, I think that even more harm is caused by some critics of the IP laws on this website (they will recognize themselves), who try to redefine property using some ideas that flirt with Marxism and who misinterpret some basic economic definitions like “scarcity” – in order to justify their point.

We can all agree on fallowing:

-People have a right to sell/exchange their property.

– People may create sales contract that express the conditions upon which their property can be obtained by purchaser. This purchase agreement may prohibit any replication that is not authorized by a certain beneficiary assigned by the seller (copyright holder). By accepting such agreement purchaser relinquishes control over his/her entire property when it pertains to copying of that purchased product.

– People can own property that contains ideas – or content of someone’s cognition. Ideas (without any physical property to contain them) cannot be owned. Their property can include their brains, pieces of paper, computer hardware, etc. This “content” makes one piece of paper more valuable than another (ex. architectural design vs. toddler’s drawing), but it also creates differences in value of labor between different people (ideas stored in out brains).

In short, the only dividing issue between social scientist should be the issue of “third party” involvement in copyright infringement.

Non-statist advocates of copyright, such as Murray Rothbard, imply that copyright violation is not a theft of some intangible concept, such as idea. They claim that violations of copyright contracts in a free market would become a theft of some real property. If the basics of our copyright law were spelled on a sales contract, the purchaser would have to acknowledge that in cases of copyright violation any future copy of that particular product will belong to copyright owner. According to our current copyright laws their violator must forfeit every single copy to the copyright holder. The unlawful possession of these copies would constitute theft and their sale would equal to sale of stolen goods, for which even the purchaser can be punished.

On the other hand, it is no coincidence that copyright issues are not left to contractual agreements between free individuals. In addition to other factors, the competition in a free-market would be based on rigidity/flexibility of the user rights. With our current “intellectual property” interference, the state prevents market competition that would occur based on many possible conditions of sale. So many complicated factors in price formation would be a true nightmare for a central planer that aims to predict future price levels and other data. Such complicated pricing process would make it harder for statists to call for price controls or to accuse someone of price gauging. Furthermore, our law is limiting the period during which the copyright can be applied, implying that this right actually belongs to the state – not to private authors and their successors.

Our current “intellectual property” laws represent aggression on private property rights, because they deny the right of free individuals to completely arrange these issues on a contractual basis. Of course, among the first victims of such liberty would be many econometricians, as well as holders of unjust patent monopolies (many powerful groups). That’s why I think that the regulations of copyrights will be returned to markets – right about the same time when the control of money supply is returned to people (I don’t see that day coming any time soon).

Sasha:

I think I can agree with most of what you said, with one exception, which may simply be a matter of wording:

“If the basics of our copyright law were spelled on a sales contract, the purchaser would have to acknowledge that in cases of copyright violation any future copy of that particular product will belong to copyright owner.”

It is true that the purchaser can enter in to a contract to transfer title of any copies owned by the purchaser back to the “copyright holder”, which may have been what you meant. However, the purchaser cannot transfer title to property it does not own, including any copies created by others. At most the original purchaser could be fined for each copy, but that would be pointless unless the purchaser was somehow complicit. Once even a single copy exists outside of the purchase contract the “copyright” — the exclusive legal priviledge of making new copies — no longer exists.

—————————————————-
“However, the purchaser cannot transfer title to property it does not own, including any copies created by others.”
—————————————————-

Why couldn’t we say explicitly in our contract that by purchasing my product, you accept that any copies that are created from that particular sample (under your responsibility) – will belog to me.

In essence, that is no different than this:

“If any person or persons, after the recording the title of any print, cut or engraving, map, chart, or musical composition, according to the provisions of this act, shall, within the term or terms limited by this act, engrave, etch, or work, sell, or Copy, or cause to be engraved, etched, worked, or sold, or copied, either on the whole, or by varying, adding to, or diminisbing the main design, with intent to evade the law, or shall print or import for sale, or cause to be printed or imported for sale, any such map, cbart, musical composition, print, cut, or engraving, or any parts thereof, without the consent of the proprietor or proprietors of the copyright thereof, first obtained in writing, signed in the presense of two credible witnesses; or, knowing the same to be so printed or imported, without such consent, shall publish, sell, or expose to sale, or in any manner dispose of any such map, chart, musical composition, engraving, cut, or print, without such consent, as foresaid; then such offenders shall forfeit the plate or plates on which such map, chart, musical composition, engraving, cut, or print, shall be copied, and also all and every sheet thereof so copied or printed, as aforesaid, to the proprietor or proprietors of the copyright thereof…”

Except my scenario is voluntary and can be negotiated with buyers.

Happylee, I’ve got some bad news for you. Homeo-naturopathic medicines are crap.

I find Robin Hanson’s ideas on health care interesting.

Sasha: “Why couldn’t we say explicitly in our contract that by purchasing my product, you accept that any copies that are created from that particular sample (under your responsibility) – will belog [sic] to me.”

I could only fulfill such a contract if the raw materials which went into the production of the copies — and thus the copies themselves — belonged to me to begin with. Even if I am the one who is responsible for the copies, i.e. the one who authorized their creation, I cannot grant you ownership over the copies owned by others. Our contract can specify that I owe you a portion of my own property as a fine, which I must pay (or be labelled a thief), but neither you nor I have any claim against the owners of the copies, who entered into no such contract and have stolen no property from us.

—————————————————-
Even if I am the one who is responsible for the copies, i.e. the one who authorized their creation, I cannot grant you ownership over the copies owned by others.
—————————————————-

Well, legally they are not “owned by others” if our original contract specified that any unauthorized copies that originate from YOUR sample will belong to me, in addition to fines that you might pay (as the current law says)… That is a “consideration” that is given for the use of my product.

If we find that some copies were produced using a “copyrighted” unit, you will be responsible for theft along with violation of contract that prohibited reproduction. The party that obtained those copies will be responsible for purchase of stolen goods.

As far as further copying goes, the copyright protection I assign is still valid even on these stolen (newly coppied) units, because they belong to me… Seller’s failure to disclose these legal details are normal for any sale of stolen goods. But every chain in this piracy is punishable by sale and purchase of stolen goods.

Such contract would prevent any loopholes, by which your copy can be “accidentally” obtained by your brother (theft of a single copy) and than multiplied in billion units outside of our contract. But my contract’s syntax would prevent such mess.

Let me clarify my position:

Under our current (and past) copyright laws, it was demanded that the violator “forfeits all infringing copy” (in addition to paying a fixed statutory fine, turning over all profits they have made from infringing copies, or a number of other remedies may be imposed by the court)

My contract would contain the same demand – by simply stating that purchaser agrees that any copies of my product – that he produces without my authorization – will be considered my property with the same terms of use that we assigned to the original unit (same conditions for use of my product(s) by that user).

The buyers and sellers of my stolen (unlawfully possessed) goods are not immune from their legal responsibility. Any new chain of copying of my newly produced property will also become my copyrighted property. In this way, no loophole is possible: every unauthorized copy belongs to me and it is protected by the original agreement upon which that copy came into existance.

Sasha, it seems to me that your contract would certainly allow some intellectual property to exits, however it would not be appliable to all things covered by copyright and patents. Mozart is known to have been able to ‘copy’ a ‘secret’ church music(the scores of the music were intended not to leave the church) by listening to it and then just writing it on the paper. You don’t have to be a genius to do it with the contemporary pop-music. Would the contract expect to bind contractually all who listen to the music?

You can ‘copy’ a book by reading it aloud with someone listening. Would the contract impede you to read a book aloud?

The contract would be possible, however it seems to me that it would be highly impractical and rarely enforced.

Sasha,

A cornerstone of private property is the fundamental principle that what a person creates with his own property is his. It can only become somebody else’s property by the owner (creator) willingly transferring the title to another person.

Now two people can enter into a contract regarding the purchase of an object as you describe (that any copies made by the buyer are the property of the seller), that can only bind those that have agreed to the contract (ie, the buyer and seller). The seller has no claim on the property of any other party unless they can get that party to agree to the contract.

If a third party never agrees to the contract, but they use their own property to produce a replica, that replica has to be considered theirs to be consistent with the private property principle. If that property becomes anothers (involuntarily), that action has to be considered theft.

Andy, musicians should earn their bucks like the artists used to do before recording devices were invented – by going out and performing. And I am aware that market in this situation would eliminate all “Milli Vanillis” of this world who are not talented enough to pull-off a live show. As far as patents go, Rothbard explained why they should be abolished (they monopolize one discovery, while penalizing other similar invention that occurred by accident or based on the same developments in science… well known example is the clash between Tesla and Marconi, regarding their radio patent)… Those authors who read out-loud do not seek contractual protection for their verses… et cetera

Contractual basis for copyright is not only possible (and natural development of purchase agreements) – but it is less impractical than our current “intellectual property” laws. Contracts would not include anything that we currently don’t have (just some things would be eliminated that are inconsistent with free and voluntary market exchanges)

JORDAN SAID: “A cornerstone of private property is the fundamental principle that what a person creates with his own property is his. It can only become somebody else’s property by the owner (creator) willingly transferring the title to another person.”

That is absolutely correct. If you buy something from me (as a publisher) and you agree that your unauthorized copies will automatically become my property – with all of the protection of my copyright clause – that implies that any additional unauthorized third party copies of MY STOLEN PRODUCT will also become mine – and protected by our signed copyright statement.

A third party cannot obtain my stolen good (“stolen” according to our contract) and than create a pseudo-property by violating contractual considerations that describe the permitted use of that particular (stolen) piece of property. The third party copier is responsible for:
– the purchase of stolen good(s)
– the infringement of the conditions for permitted use of my product, that applies to my copies/my property (based on our contract)
– the theft of my newly created units, because any copy of my property (even newly created property founded on infringement) belongs to me based on copyright protection that stems from our original agreement (your theft cannot change this contractual facts, nor create a loophole).

Sasha: “Andy, musicians should earn their bucks like the artists used to do before recording devices were invented – by going out and performing.”

What are you attacking Andy for? He appeared to me to be arguing against the viability of enforcing copyrights and patents through contracts, not supporting them. In any event…

Sasha: “If you buy something from me (as a publisher) and you agree that your unauthorized copies will automatically become my property – with all of the protection of my copyright clause – that implies that any additional unauthorized third party copies of MY STOLEN PRODUCT will also become mine – and protected by our signed copyright statement.”

(a) Your product was never stolen, and even if it were you would only have a claim to the stolen property itself (and possibly equal retribution), not any copies that were made.

(b) The purchaser has no right to give you the property of others. No contract you could make with the purchaser could possibly give you any claim over copies made by third parties from their own raw materials.

You appear to be misunderstanding contract theory itself. Contracts cannot specify legal limitations on the use of one’s own property. They can only specify conditional or unconditional transfers of title, in the present or the future, to real property owned by one of the parties to the contract. Contracts must be entered into voluntarily by both parties to be binding, and thus you cannot claim title to all copies made by others (since they have entered no such contract), but rather only the copies owned by those who agreed to the contract. Furthermore, implicit contracts must meet rigorous standards to be considered valid, including, at minimum, that the contract must grant both parties some property right they did not previously possess, the acceptance and use of which indicates voluntary agreement to the implicit contract, and that the terms of the contract must be fully understood by both parties. Thus, you can’t use an implicit contract to enforce copyrights as no additional property rights are required to make copies, even when the original is owned by someone else.

Sasha,

“. . . any additional unauthorized third party copies of MY STOLEN PRODUCT will also become mine – and protected by our signed copyright statement.”

You have committed a logical fallacy here. You are assuming that this is theft in order to demonstrate that this is theft.

If we adhere to the principles of private property, we must allow that a third party person (who is not bound by the contract because they have not agreed to it) use their own property as they see fit.

What you seem to be claiming is that if someone uses their own property in certain ways, it can become subject to confiscation by someone who claims they violated their copyright. I believe that this confiscation represents a violation of private property principles and I fail to see how it could be understood otherwise.

JESSE SAID: “What are you attacking Andy for?”

Where do you see an attack? The fact that I answered the question about my views on performing arts does not constitute an “attack” even if my corespondant is on LSD. Andy probably didn’t feel like he was attacked.

O Kay… I will try my last attempt to explain my points, before I stop occupying more space with the repeated messages:

If in a contract you agree to declare any of your future unauthorized copies as my property with all the original terms of use – no one in the world should be able to deny your will.

If these newly created copies (my protected property) get copied by the third party – this is a copyright violation and also a theft (since these copies are protected based on our contract – and they are declared as my real property – by you).

If these new copies get copied by the fourth party – this also represents unlawful copying of my property (according to our contract) and theft based on the same principle.

Basically – when my firs (ab)user admits in a contract that any of his unauthorized copies will become MY PROPERTY, PROTECTED UNDER THE SAME CONDITIONS AS THE ORIGINAL, this protection and my property right will logically roll-over to any newly created copies.

I can explain why these contracts are valid, using exactly Jesse’s and Jordan words.

I will answer to Jesse’s objections, using his own arguments (hopefully, he will not object, since I accept his theoretical statements as valid, but I deny that they disaprove my arguments).

__________________________________________________

“If you buy something from me (as a publisher) and you agree that your unauthorized copies will automatically become my property – with all of the protection of my copyright clause – that implies that any additional unauthorized third party copies of MY STOLEN PRODUCT will also become mine – and protected by our signed copyright statement.”
__________________________________________________

(a) Since using your free will, you declared that any unauthorized copies will become MY PROPERTY – and any failure to deliver these units to me represents a dishonest appropriation – OR A THEFT.

(b) The purchaser has no right to give me the property of others. The purchaser simply states that he can produce some copies that legally belong to me – and that these copies are protected by the same user agreement that apply to the original. That simply means that if the third party copies my new products without authorization, he will be subject to my stated conditions, whether he is aware of them or not.

I am not misunderstanding contract theory. Contracts can specify conditional or unconditional transfers of title, in the present or the future, to real property owned by one of the parties to the contract. That is how you agreed to transfer any future copies of my product to my title and under my specific terms of use. If you fail to deliver my product, you are committing a theft. When some third party acquires this property without my knowledge (purchase of stolen good) and when he/she copies this product without any authorization – your own contract must come into play – because you provided my product to the third party.

Contracts that involve the purchase of my stolen goods are not considered valid, and the property-right cannot be established when even terms of permitted use of such product are violated. Thus, I don’t use any implicit contract to enforce copyrights as I already have property rights on your copies – based on your own signature, and I even have the same copyright provisions on those copies, and their copies as well, based on that contract.

Sasha:

I’m getting a bit tired of going over the same points over and over again. Can we just agree that we’re basing our arguments on completely different theories of property, one of which (mine) is consistent with the Austrian/libertarian theory of property elaborated by Mises, Rothbard, Hoppe, etc., and the other of which (yours) has no basis in either homesteading or contractual title-transfer? It’s rather pointless to discuss the finer points of copyrights and patents while even the most fundamental concepts of property rights and contracts remain in contention.

I will now try to respond to Jordan’s objection to this statement:
__________________________________________________

“. . . any additional unauthorized third party copies of MY STOLEN PRODUCT will also become mine – and protected by our signed copyright statement.”
___________________________________________________

I did not commit a logical fallacy here. I am assuming that any unauthorized appropriation of my property is theft.

If we adhere to the principles of private property, we must allow that sides in contract have a right to assign the private property rights and terms of use of future copies – as they see fit. Since these copies contractually become my possession, and since they are protected by the copyright (which state that any unauthorized copy will also become my property), a third party person cannot simply take my property and violate its terms of use. The fact that this person is not caring for my property rights and your contractual obligations is only proving that this person is a thief.

—————————————————

Jesse, I only answered to repeated arguments. I also got tired of them.

My points are based on logical extension of Rothbard’s copyright theory. He basically stated that anything that copyright be stated in a free marker contract. If you look at my example more carefully, you will see that I only follow the fundamental right that a purchaser can obligate himself/herself to assign property rights of any copy to the seller – and to agree that the same terms of use will apply to the copy (including the right to transfer any unauthorized copy to the original seller). I am sorry I have to repeat myself, but you still have not logically denied this basic right.

Correction:

Jesse, I only answered to repeated arguments. I also got tired of them.

My points are based on logical extension of Rothbard’s copyright theory. He basically stated that anything that copyright implies can be stated in a free marker contract. If you look at my example more carefully, you will see that I only follow the fundamental right that a purchaser can obligate himself/herself to assign property rights of any copy to the seller – and to agree that the same terms of use will apply to the copy (including the right to transfer any unauthorized copy to the original seller). I am sorry I have to repeat myself, but you still have not logically denied this basic right.

To make a long story short Jesse (or anyone else):

– Do you agree that we can create a contract in which you state that any future copy of a product will belong to me and that you agree that the same copyright terms will apply to it?

YES OR NO?

Please just provide answer and refrain from comments.

After you answer that question, I will ask you this:

– If you sell your copies of this purchased product, whose property you just sold based on our contract – mine or yours? Is there a copyright protection assigned to these items somewhere in our contract?
– If you sell your own original item, do you just break-up our contract, even if it states that it would apply to any purchaser of that item? Please explain.

Jesse, Sasha: The contract would have to state, that the contractual party would bind all people who come in contacts with the ‘copyrighted’ piece of art with the same contract. That’s why I think it would be impractical in most of the areas.

If the person in question breaks the contracts (‘doesn’t bind somebody else with the contract’), what could you say of the resulting copies that were made by somebody else?

It is similar to trade secret: If a Coke manager accidentally allows to leak the recipe for Coca-cola, can you demand that another company stops producing copies of this beverage? You definitely can demand retribution from the manager, but the ‘2nd-coke’ company did not break any contract and did not trespass any of your property.

Andy:
“The contract would have to state, that the contractual party would bind all people who come in contacts with the ‘copyrighted’ piece of art with the same contract. That’s why I think it would be impractical in most of the areas.”

I don’t think it would. The contract would be exact substitute for current copyright law, plus patent and trademark legislations… Now that’s complicated.

As far as your hypothetical examples go, think about this way: if you sold only a partial use of your product to me (as spelled out in contract), I cannot “accidentally” provide full use of that product to someone else. That purchase of unauthorized use is not different in principle than purchase of stolen good.

Sasha, Question #1: Yes, you can.

Sasha, Question #2: Yours (the original sellers’). I agreed to the contract, I owned the raw materials, I made the copies; there is no conflict. As per the contract any copies (or copies of copies, etc.) I create immediately become yours and I have no right to sell them.

Sasha, Question #3: If I own the original then I can choose to sell it. Any contract you and I have agreed to is binding on you and me only. If I sell the original (which I own) the contract remains valid, but is no more binding on the buyer than it was before the sale. If you wish to prevent this you have a few options: you can retain ownership of the item, preventing me from selling it at all; you can include in the contract that the title transfers back to you should I attempt to sell the item (effectively the same thing); or you can use the latter approach, but allow the sale to go through (avoid the title-transfer) if the buyer voluntarily enters the same contract. This last approach comes closes to the “viral” copyright contract envisioned by Rothbard — but it doesn’t address the situation where the maker of the copies is not a buyer, or otherwise related in any way to a contractual participant.

Sasha, Response to Andy: “. . . if you sold only a partial use of your product to me (as spelled out in contract), I cannot “accidentally” provide full use of that product to someone else. That purchase of unauthorized use is not different in principle than purchase of stolen good.”

If by “selling a partial use” you mean “retaining ownership but permitting some limited set of uses”, then you are essentially correct. Since you still retain ownership, anything that would normally be considered trespass (loosely equivalent to “damage” or “transformation”) against the object, and was not specifically permitted in the list of valid uses, would form a just basis for a claim of tort. This is based on the fact that in the absense of the contract any trespass would support a claim of tort, and you are obviously free to waive that right for specific kinds of trespass through the contract. Unfortunately for your conclusion, however, making a copy of something does not trespass against the property rights you have in the original.

To illustrate, if I intended to rent a machine from you I would need a contract similar to what you described, due to the fact that I need to move the machine to a different location and impose normal wear and tear on it, both of which would normally constitute trespass. In exchange for a title to part of my property you waive your right to claim tort for these forms of trespass resulting from my use — all of which is perfectly normal, and consistent with Austro-libertarian principles of property and contracts.

On the other hand, if you own a painting (for example) and I can manage to observe it (say, by taking a picture) without agreeing to any sort of contract (say it’s visible to the public, or you simply neglect to keep it hidden and/or make your guests sign a contract on entering your house), then I have committed no trespass. The painting remains in its original form, at its original location; there is no damage, no transformation. For a single object this isn’t much of a problem: just protect the painting better from casual viewing. For anything intended for mass-market, however, this makes the copyright-contract system costly and unworkable; the cost of maintaining the contract would far exceed the value of the media.

Sasha> I cannot “accidentally” provide full use of that product to someone else.

I doubt many contracts would be signed by the buyer that included what amounts to severe policing of the “property” (by the buyer) to protect the interests of the seller, since that is what it amounts to. A contract could say — just like non-disclosure contracts — that the buyer won’t disclose the information. Through no reasonable fault of the buyer, the information could leak out. The third party is no part of the non-disclosure agreement, and can use the information however they wish.
A tornado could “hit” and move the information. Who’s fault is that? Even if, say for example, an employee of the seller, leaks the information/idea/pattern, the damages are only due from the dishonest employee — third parties don’t necessarily have any blame whatsoever in that case. Once a third party has it, the cat is out of the bag.

I can only speak for myself, but I still can’t understand how you are linking a 3rd party into a contract between two parties.

With regards to Jesse’s painting example, what I am claiming is that–if we are to assume that the third-party picture-taker owns the camera and equipment, he owns anything he creates with that property–ie, the picture of the painting.

Since he has not agreed to any copyright contract, he has full ownership of the picture and can dispose/sell/publish the photo as he sees fit. He maintains his copy absent of the original–he has not trespassed nor damaged the original in any fashion, i.e., he has not violated private property principles.

If this is not the case, on what grounds do we have to take any action against the third party?

If the contract between painter-owner and painter-buyer directly affects the painter-photographer, who never agreed to the contract, what’s to stop Sasha and I agreeing to loot Jesse, pray tell?

As far as performing art goes – or painting for that matter, or reading poetry out loud – I already explained that you cannot protect that with copyright…. Someone can hear a song or see a painting and try to replicate it – without any contractual restriction. if you put your artwork in an open public, recording it with a camera is not essentially different than recording it with our brain. That’s why I said that these artists need to go out and perform…. and use their recordings as a mean of additional support by their fans. If artists want to prevent the unlimited display of their works, they need to specify that in their contract with each buyer.

These examples do not refute my position on privatization of copyright.

———-

Greg, a tornado can move around our current copyrighted material as well… so what’s the difference. See my first post and you will see my view on why copyright is nationalized.

————

Jesse, if I sell you “some limited set of uses” for my product (if I copyrighted it) a third party cannot obtain the full use from you. If a third party does that, he/she is committing a theft (that’s what Rothbard meant). So we agree on that.

If we contractually agree that any copies that you create without authorization will belong to me and that they will also be protected by the same copyright clause (even their copies will become my property) – than all possible unauthorized copies and profits that they created will belong to me.

So that’s not different from our current copyright – it’s just privatized… and some things that are inconsistent with free markets are excluded.

Very well. If you put it that way, I think we actually agree on the validity and limitations of contract-based copyright; the only differences appear to be semantic or technical in nature — for example, where you talk about selling “some limited set of uses” or “a partial use” I would instead say “permitting certain, specific kinds of trespass to fulfill the conditions of a contract”, which has the advantage of clearly indicating that the ultimate ownership of the property remains unchanged. Also, you sometime leave out important qualifies, e.g. saying “all possible unauthorized copies” rather than “all unauthorized copies created and owned by a party to the contract.” Our meanings, however, appear to be the same as far as this discussion is concerned, taking into account the first paragraph of your most recent response.

I must say, however, that this system does possess several notable differences which separate it from the current copyright arrangement; an important part of the current system, the part which gives it most of its power, is that any copy or recording found without a clear record of authorization is automatically assumed to be infringing on the copyright, which can be enforced with huge punitive liabilities (up to $150,000 per copy). A contract-based system works the other way around: the person with the copy must be shown to be a voluntary participant in the contract before any penalty can be levied. This is technically one of the “things that are inconsistent with free markets” which must be excluded, but without it one might as well consider copyright unenforceable for any mass-market good.

It would still be applicable in the same situations which work for trade secrets, of course.

Copyright protection, or any other limitations in term of use, does not need to be nationalized. It can be carefully spelled out in a free-market contract. It is not an easy task to create such contract that would prevent a third party infringement (that’s why I insisted on current practice of forfeiting pirated copies straight to the original owner)… But I am glad that guys here actually understood and accepted most of my arguments, in spite of initial disagreement. You helped me tremendously in explanation and development of my arguments.

====================================================
Jesse:
“A contract-based system works the other way around: the person with the copy must be shown to be a voluntary participant in the contract before any penalty can be levied.”
====================================================

The privatized copyright would create a situation similar to any sale and purchase of stolen goods. Here, you have theft of unauthorized use and its sale. The main targets are massive copyright violators. I don’t think that privatized copyright would be less efficient than our current mess.

Sasha,
As far as performing art goes – or painting for that matter, or reading poetry out loud – I already explained that you cannot protect that with copyright….

I beg your pardon…what would you protect with the ‘contractual copyright’, then? It seems to me that your definition excludes pretty everything that today’s copyright cover. (maybe except musical scores(the graphics), which is…umm..personally I find not being able to copy Bach’s scores rather crazy (even rewriting it to the computer, because there was some ‘editorial work’, if you want to do it, you must find the original scores(written by Bach personally), or some that are more then century old)

Sasha,

I think we’re 99% of the way toward agreement. I tend to disagree with the term “copyright” to begin with. It is more appropriate to all it a “contractual agreement.” The term “copyright” is typically attributed to an object. This implies that it can be enforced on any person because it a property of the object. A contractual agreement demonstrates a consented arrangement between parties, which is perfectly valid. But it should be clear that this is NOT Intellectual Property.

A contractual-agreement would, I would guess, work in most cases involving trade secrets–things that are meant to be kept out of the public image. I don’t think it would work (in a free market) when exposed to the public eye however.

Note, I’m only referring to “ideas,” not to any physical embodiement of said idea (ie, the story of a book, not the physical bound paper and ink).

To clarify–whether or not (or exactly how) contractual agreements would work in a free market is something that would be decided in a free market.

One point that must be clear however is that the agreement can only affect the property of those that agree to it. So long as you adhere to this, let the market decide what works and what is profitable.

Jordan, amen. The term copyright in itself is not as bad as “intellectual property.” Former actually describes something that can be arranged between a seller and a user.

—-

Andy, contractual copyright cannot be formulated in cases in which you let everyone record your artistic performance, either by a recording device or a brain. Now, you can restrict recording devices and perhaps even put some disclaimer on an admission ticket regarding a copy, but that is not the point.

With a contractual copyright you can protect anything that is recorded and established as your property. On the other hand, if I hear your song on the radio I will be able to perform it on my concert. You basically allowed that to happen – and it is not a big deal (if you are any good and I am not). If I purchased printed version of your unperformed musical scores – and than used it against written terms of use, that’s a different story…

We basically understand each other, but I don’t think that copyright privatization would be ineffective (not more than any other contract enforcement). It would open some different aspects of pricing and create a nightmare for econometricians. That in itself is worthwhile : )

Sasha> Greg, a tornado can move around our current copyrighted material as well… so what’s the difference. See my first post and you will see my view on why copyright is nationalized.

There is no difference, so that would provoke some questions. It seems like you believe “ideas” (absent mass) are themselves are property. True? Can you explain why?

Greg, the fact that there is no difference explains why tornado example does not prove that nationalized copyright is superior to voluntary private contracts that would settle this matter.

Your comment that “it seems” like I believe that ideas are property themselves, shows that you didn’t read my first posting, in which I explicitly dealt with that issue (the third point bellow the statement: “We can all agree on fallowing”). My other messages also had nothing to do with such notion.

Regards.

Sasha> [T]he fact that there is no difference explains why tornado example does not prove that nationalized copyright is superior to voluntary private contracts that would settle this matter.

Of course not. The “act of God” example was and extreme example for third party inclusion without reference to a State. I still don’t know how the third party is bound.

Sasha> Your comment that “it seems” like I believe that ideas are property themselves, shows that you didn’t read my first posting, in which I explicitly dealt with that issue (the third point bellow the statement: “We can all agree on fallowing”). My other messages also had nothing to do with such notion.

I read it, but I did not see in it what you do.

Greg,

“The act of God” example had no relevance on my arguments for copyright privatization. Accidental inclusions in any kind of property are never punishable by law. What we talked about here were examples of theft in regards to violations in terms of use.

I am also sorry that you unable “to see” in my comment “what I do”… Either way, your comment that I believe that – “ideas (absent mass) are themselves are property” – is simply not true.

Regards.

Sasha: “The privatized copyright would create a situation similar to any sale and purchase of stolen goods. Here, you have theft of unauthorized use and its sale. The main targets are massive copyright violators. I don’t think that privatized copyright would be less efficient than our current mess.”

Am I correct in inferring that the “main targets” you are referring to here are limited to people who have clearly entered into the contract, who are making copies from of their own raw materials, and who are then selling these copies they have made on the street (or wherever)? If so then I wholeheartedly agree that this would be sale of stolen goods, and that this system would be quite effective against such targets.

I just think that you won’t find many people who actually meet these qualifications; one could just as easily (perhaps more easily) pull the digitized recordings off some anonymous online file-sharing service and make and sell the exact same copies free of any contractual obligation.

P.S. A copy of stolen property (made of non-stolen raw materials, of course) is not itself stolen property — do you agree or disagree?

Jesse, it is clear what categories of offenders would be the obvious target of any kind of theft. The old-fashioned street market of piracy is still wide-spread all over the world. As far as digitalized theft goes, there are fancy ways to track it and fight against it, but that does not change the nature of theft and the issue of unauthorized use. We deal with that issue now, so privatization of copyright is not an issue.

A copy of stolen property (made of non-stolen raw materials, of course) is stolen property, if the contract specifies that any such copy belongs to me, and the offender refuses to forfeit it. The same goes for a third party that obtains your rights of use and enters my contract, and so on… but what if a third party realizes that by legally obtaining your user rights he is unable to make unauthorized copies for himself – so he decides to steal it?

You cannot obtain the right of full use of my product by “stealing” it from someone who only has a right of partial use. In such case, our contract still holds. You cannot be legally responsible for someone who stole from you, but our contractual ramifications for unauthorized use of that unit of product are still very much alive. So any produced copies by him would still belong to me, but he would be responsible for the damages – not you, of course.

If a thief was able to break any legal title by the act of theft, he would not owe anything to the person he stole from (in this case – to both of us) and no theft would ever be committed.

Sasha> “The act of God” example had no relevance on my arguments for copyright privatization.

I know. The example was to help determine how a third party would be bound. That is, to understand your foundations before worrying about how they are to be built upon.

From your writing, it seems to me you believe ideas are property without tie to (non-human) mass. That is, without physical objects manifesting the pattern. It would seem this is the only way a physical object possessed and even created by a third party — with a highly correlated pattern to the first parties physical objects — could be considered the property of the first party.

You’re saying the idea — without regard to non-human propertied mass — was owned by the first party seller and that transmission of this idea (manifestation) into the physical property of the third party somehow transformed that physical property to that of the first party seller. (It is actually irrelevent whether or not the first party seller ever contracted this out to any buyer. All that mattered was that a non-contracting third party created a highly correlated pattern with his/her own physical property, and somehow that first party would be seller claimed that property was now his/hers, because they “owned” an idea/pattern absent mass.)

To say that someone owns any physical manifestation of an idea or pattern is to say that the idea absent (non-human) mass is what is owned — after all, that is how it could get transmitted into a physical object and then have some particular person assume ownership of that physical property without regard to another’s previous claim. I can’t figure out how else I could interpret your writings.

Greg,

The hurricane example could not possible help you with the issue of a third party involvement in copyright infringement (theft of unauthorized use) – because accidental acquisition of property is never punishable by law and it is not a theft. For example, you would not be responsible for a theft of a piece of silverware that hurricane brings to your property, so your example is completely irrelevant in the area of copyright – it is never punishable.

In spite of my explicit explanation that – I DO NOT THINK THAT “IDEAS ARE PROPERTY WITHOUT TIE TO MASS”- you continue with that false assertion. Unfortunately for you, I didn’t write a single sentence that would support such insane argument. “It seems” (now I will use your style) that you are imputing me this false statement, just so you can do a rebuttal, no matter how absurd it is.

If you read my postings, you would have seen that a person can become the owner of unauthorized copies of his product – only based on contractual agreement that provides that – not on some abstract “idea without mass” notion. I explained why a third party can never obtain the right to replicate my product if that right was not available under my contract (terms of use) with the original buyer or second party. Remember – I never sold a product – I sold the rights for certain uses of it.

Of course, a contract can be violated by an involvement of a third party outside of contract. That is why terms of use always state that such involvement is not permitted. The contract states that only personal, non-commercial use is allowed and it prescribes the measures in cases of infringements of these terms (ex. “any violation of… will result in…”). Terms of use are phrased in a way that prevents you from violating the contract and than safely passing the blame to your household member (or any third party) who is not a part in that contract.

PS
Can you please not assume what I wanted to say (sentences that start with “it seems”). If my points are not clear to you, simply ask me to clarify them. That is – if you care about intelligent and civilized dialogue.

I have not been following this thread closely, especially with Sasha’s involvement, but someone I believe seems to be linking “mass” with property. LEt me just say that it is scarcity (rivalrous), not “mass,” that is the key thing. Think of the paradigm case of property: land. But is it really mass you homestead, or more like a defined surface area (volume?) *on* the surface… etc.

“The key thing” is that no one here claims that the “ownership of an idea in itself” is possible – but that we can own property that contains some pattern or idea. The ownership over a physical property implies the right to sell some uses of it – and to restrict other uses, such as replication. As far as homesteading goes, if you are able to claim ownership over a body of water on your land, you will have right to claim the air that is on it as well… At the same time, if taping into an oil well gives you the ownership right over its volume, your labor at the surface of the property provides you with claim over entire piece of land (usque ad coelum principle)… but that is not directly relevant for our discussion on privatization of copyright.

Sasha:

Apparently it is as I said before: we don’t share any common theory of property rights or contracts.

“A copy of stolen property (made of non-stolen raw materials, of course) is stolen property, if the contract specifies that any such copy belongs to me, and the offender refuses to forfeit it.”

What contract? Contracts exist between people, not pieces of property. The only way a contract would do what you say here would be if the thief had already entered into a contract with you directly. A contract between the seller and the buyer cannot alter the ownership of the (rightfully acquired) property of the thief. The contract does not automatically attach itself to everyone who comes into contact with the property. It is called “theft” precisely because there is no contract between you and the thief. What was stolen remains yours, but what was owned by those who came into contact with the stolen property likewise remains theirs.

“You cannot obtain the right of full use of my product by “stealing” it from someone who only has a right of partial use. In such case, our contract still holds.”

You say this as if one actually needed a right to “use” a piece of property in a certain way (also known as the theory of “positive” rights). Libertarianism and Austrianism are based on the theory of “negative” rights, where property rights are defined as rights of exclusion; violation of the defined boundaries of the property (without the owner’s permission) is trespass, the only justification given for self-defense or retribution. Not all “uses” violate this exclusion. Observing the pattern of a piece of property (and thus, by extension, making a copy of it) does not violate the exclusive rights of the owner in any way.

(Also, the above objection holds that the property of this thief does not suddenly become yours simply because it is transformed into an imitation of your property. There is no contract between you and the thief which would make the thief’s property yours (not what he stole; what he had originally); you only have the right to recover your own property, plus — according to Rothbard — the same amount again in retribution.)

“If a thief was able to break any legal title by the act of theft, he would not owe anything to the person he stole from (in this case – to both of us) and no theft would ever be committed.”

Theft can neither create nor break a legal title. What the thief stole remains yours, and you have the right to take it back, plus equal retribution. You do not have the right to anything beyond that. Contracts do not define property; they merely transfer its title from one person to another with the express agreement of its owner. The existance of the contract with the buyer, in which the buyer agrees to give the seller any copies he or she makes (which must have belonged to the buyer before they were given to the seller) has nothing to do with the property of the thief, who did not agree to give the seller any of his/her property, and who is bound only to return what was stolen: the original copy.

“The ownership over a physical property implies the right to sell some uses of it – and to restrict other uses, such as replication.”

It implies no such thing. Ownership gives you the exclusive right to determine who may trespass the boundaries of the property (not who may “use” it). Replication (or imitation) does not trespass the boundaries of the property and thus does not violate the exclusive rights granted by ownership. One may only restrict, on the basis of property ownership, those uses which trespass against the property: anything involving relocation of the property, transformation, consumption, etc. Replication does not alter the property in any way; it cannot be restricted.

—–

Greg: Exactly so, except for the confusion between mass (physics) and scarcity (economics) that Stephan so kindly pointed out.

Sasha> Of course, a contract can be violated by an involvement of a third party outside of contract.

That does not make sense to me. I cannot conceive of how someone not party to a contract could violate it. It seems to self-contradict.

I’m sorry you don’t like “seems.” I was only trying to give you the benefit of the doubt — the opportunity to explain yourself. Whether I am too dense, or you can’t articulate, is beside the point now, as we’ve given it several go-rounds and I just don’t understand your foundations. So now I give up. I don’t care about your development and details because I don’t get your foundations.

I think that some idea of “physical mass with a pattern” being the foundation of idea-property is a stretch, to say the least. I wanted you to give you the opportunity to explain what I perceived as your idea-mass linkage, since I could not understand it myself. I have no idea why you make the link, and other things you write appear to contradict. (Incidentally, I am an engineer, have written correlators that, of course, do pattern recognition. I believe your link is ill-founded. There is an archetype — a pattern — but the an approximate physical representation of that archetype is not a matter of hard physics and pure objectivity. It is a matter of human subjectivity, as each copy is different — there is no “perfect correlation,” even in applied science. You might know porn when you see it, but it is subjective, an archetype, not a matter of physics.)

Greg, super! I really don’t need any more insinuations about things I never said. If you change your mind, I will explain my position to Jesse

——

Jesse,

I am not referring that an implied contract passes to a third party that acquires my product from you (although some people would see it that way). Like I said… in case that a third party steals my product from you – our contract would still be intact – and its clauses regarding any copies made would still apply (whether your household member copied it or someone else makes no difference). You would not be legally responsible for the violations, but our contract (like many of them out there) would state that “any violation” in terms of use would result in… (my ownership title of these copies). I don’t care who violates it under your supervision – I care about the realization of our contract’s provisions. Thief should find out who owns the product, who has the right to use it, and what uses are prohibited to anyone else.

If a third party cannot legally obtain the right to full use – it cannot obtain it by theft, either. A thief cannot annul the existence of our contract, just like he/she can’t break my ownership title. A thief enters into the contract right where out terms of use state that only permitted use is your private, non-commercial use – and that in cases of violation some terms apply. The thief should ask about these in advance : )

When it comes to “observing” my product instead of stealing before copyright, my contract still holds… and Rothbard said something about it:

ROTHBARD: ” A common objection runs as follows: all right, it would be criminal for Green to produce and sell the Brown mousetrap; but suppose that someone else, Black, who had not made a contract with Brown, happens to see Green’s mousetrap and then goes ahead and produces and sells the replica? Why should he be prosecuted? The answer is that, as in the case of our critique of negotiable instruments, no one can acquire a greater property title in something than has already been given away or sold. Green did not own the total property right in his mousetrap, in accordance with his contract with Brown—but only all rights except to sell it or a replica. But, therefore Black’s title in the mousetrap, the ownership of the ideas in Black’s head, can be no greater than Green’s, and therefore he too would be a violator of Brown’s property even though he himself had not made the actual contract.”

http://www.mises.org/rothbard/ethics/sixteen.asp

As far as “positive rights” go, we understand each other perfectly, and there is no need to go into semantics (whether the glass is half empty or half full). I stated that all uses of my product are permitted to you – except sales and replication… In other words you obtained a right to observe, burn, or do whatever you want with this product – except for two restricted uses. That is exactly how Murray Rothbard phrased it in his mousetrap example – and he is a great Austrian, right?

Suma Sumarum: it is your responsibility to prevent any abuse of our contractual terms. If you fail, you will still have to prove that you were not negligent or an accomplice. Nevertheless, my contractual provisions will still apply: I would have a claim against you in the amount of these copies – and you would obtain them from Mr. Thief, because he caused you that liability by an illegal and premeditated act. You guys would sort it out… Rothbard was confident in that, and so am I : )

Naturally, this debate has not changed my views regarding copyright. I think Rothbard was correct.

When it comes to logic, nothing beats Murray Rothbard and Hans-Hermann Hoppe!

Björn Lundahl
Göteborg, Sweden

Sorry, I did a terrible mistake (joke), in my above statement, Ludwig von Mises should, of course, be included as well!

Björn Lundahl

Sasha:

I’m going to ignore your first post, since it didn’t address what I said in the slightest: namely, that contracts (under Rothbard’s own title-transfer theory) cannot create or restrict rights (i.e. property), but only transfer them from one person to another. According to Rothbard contracts must consist of terms of the pattern “if this condition occurs, then this property title will transfer to this person.” Anything else is a “mere promise” and unenforceable. You can, of course, keep the property itself and just agree to “look the other way” when specific exclusive rights you already have are violated (allowing you to “sell specific uses” of the property). Looking the other way would be the condition of the contract; the title-transfer would be the payment.

“Suma Sumarum: it is your responsibility to prevent any abuse of our contractual terms. If you fail, you will still have to prove that you were not negligent or an accomplice. Nevertheless, my contractual provisions will still apply: I would have a claim against you in the amount of these copies – and you would obtain them from Mr. Thief, because he caused you that liability by an illegal and premeditated act. You guys would sort it out… Rothbard was confident in that, and so am I : )”

I think Rothbard’s confidence in his copyright theory was misplaced, as in it he flatly contradicts several of his more general statements about property and contracts. You may indeed be right that in the situation you have specified here, where the contract makes the buyer liable for all copies made, and where someone actually steals an existing copy from a buyer in order to make one or more duplicates, the thief may be considered liable for the secondary results of the theft (the fines the buyer now owes for the additional copies); this would be quite reasonable, and consistent. Nonetheless the contract cannot directly alter the title to the thief’s property; it can only impose fines on the buyer, which the buyer can then recover from the thief. Thus, if the original was not stolen, but instead copied in-place, then the copies were not made through an illegal act and the buyer cannot shift the fines onto the copier.

“I stated that all uses of my product are permitted to you – except sales and replication… In other words you obtained a right to observe, burn, or do whatever you want with this product – except for two restricted uses. That is exactly how Murray Rothbard phrased it in his mousetrap example – and he is a great Austrian, right?”

You quoted that passage before, and I stated then that I believe he was inconsistent on that score. Replication is not exclusive to the property owner to begin with, being merely a combination of observation (also not an exclusive right) and manipulation of one’s own property (which one does not require any sort of permission to do).

Think of it this way: If I were to see this object and then manipulate my property in any other way — not in imitation of the object — then I believe you would agree that no contract you might have with the keeper of this object could cause my property to become yours as a result. (Otherwise you could effectively steal all my property simply by placing some huge object where I can’t avoid observing it.) However, the only difference between this and the scenario we have been discussing is that the former manipulation does not employ the idea or pattern of the original object, and the latter manipulation does. In other words, you are placing the idea or pattern in a special, protected position, granting it additional exclusive rights. You are making the idea itself subject to ownership, which you claimed previously you did not support.

As I have explained several times, Rothbard went astray in his copyright comments. They are incompatible with his title theory of contracts and his property rights views. He somehow views stamping at thing “copyright” as a way to protect not only works of authorship (what copyright covers) but also inventions, like a moustrap. The view is confused and wrong; there are any number of problems one can point to. First, what about methods? There is no way to stamp “copyright” on a method; yet that too is an invention that ought to be protectable if a new apparatus us. And anyone with familiarity with patent law and the difficulties of defining the metes and bounds of an invention (by means of “claims”) will realize that stamping something “copyright” is an utterly unworkable way of specifying the invention that is to be claimed. Moreoever, anyone familiar with the utter lack of objectivity and inherent ambiguity and vagueness of IP concepts will realize that it is not possible to arrive at an objective identification of what invention one is entitled to have ownership over etc.

Moreover, the main problem is Rothbard here attempt to ensnare third parties by the analogy that you are not entitled to use a good if it is stolen property–but this analogy requires one to hold that the informational aspect of a particular material scarce resource is itself property. Of course, it is not, since the information itself is not a scarce resource.

And amateurish, scientistic ramblings about the “energy” of an object don’t change this.

There is a strange pattern among some self-proclaimed “Austrians” to insinuate and impute some statements to their opponents – just so that they can do some absurd attempt of a rebuttal. The latest victim is Murray Rothbard. This great economist opposed patent protectionism – and he never claimed that honest discoveries and the use of known methods should ever be sanctioned.

Rothbard only called for the freedom of contracts, in which you can clearly state: what uses of your private property are not permitted – and what will be the consequences in case of such violation.

And amateurish, insane ramblings about how contract violators can “not act and just exist” don’t change this… and neither do communist ramblings about how we acquire our property (foolish denials of ownership over our entire body and our own labor).

—–

JESSE SAID: “the contract cannot directly alter the title to the thief’s property”

Our contract would not alter property title of a thief’s property! As I said:
“it is your responsibility to prevent any abuse of our contractual terms. If you fail, you will still have to prove that you were not negligent or an accomplice. Nevertheless, my contractual provisions will still apply: I would have a claim against you in the amount of these copies – and you would obtain them from Mr. Thief, because he caused you that liability by an illegal and premeditated act.”

JESSE SAID: “You may indeed be right that in the situation you have specified here, where the contract makes the buyer liable for all copies made, and where someone actually steals an existing copy from a buyer in order to make one or more duplicates, the thief may be considered liable for the secondary results of the theft (the fines the buyer now owes for the additional copies); this would be quite reasonable, and consistent.”

If I didn’t think that I was correct and consistent – I would not have made such argument. But thank you for the confirmation, anyways. It confirms that Rothbard was correct in his confidence in private contracts, which can allow for copyright protection, without state interventions and aggression.

NSK> Moreoever, anyone familiar with the utter lack of objectivity and inherent ambiguity and vagueness of IP concepts will realize that it is not possible to arrive at an objective identification of what invention one is entitled to have ownership over etc.

I was trying to make that same point — perhaps awkwardly — by saying there is no such thing as “perfect correlation” in the physical world when it comes to pattern replication. There is no scientific way to do this, and even then, any set point chosen for lack of correlation to distinguish between “idea-property” from “idea-non-property” can only be subjective and arbitrary. While I pressed Sasha for a foundational “physics” theory of property — since it looked to me some link was being made, I never thought it was possible by definition, although I thought even a wrong theory might be interesting.

The transmission of ideas via language, sounds, and images is indeed through a physical medium. But this is irrelevent because these mediums are abstractions of physical things by definition. Language in its many forms is symbolic, an abstraction by definition. In fact, book is nothing but a collection of abstractions, despite the recording in physical ink and paper. A bill of materials and an assembly drawing are nothing but abstractions. Proponents of IP law — whether by state or private — need to demonstrate how ideas (abstractions) can be property. I haven’t yet heard/seen a comprehensible demonstration.

Jesse [to Sasha]> You are making the idea itself subject to ownership, which you claimed previously you did not support.

That is what I saw too — an implication going one way, but then outright denial of the implication (assertion of the opposite). So I used “seems” to see if there was any explanation to make me see things in another way. If an explanation was given, I neither understood it, nor even noted a hint that the apparent contradiction was being addressed. So I gave up. It has not been explained to me how ideas can be property to my satisfaction. I’ll keep an open mind though.

Greg,

It has not been explained to you how ideas can be property – because no one here (to my knowledge) made such argument. Does that “seem” clear enough?

I stated that supporters of privatized (contract) copyright do not need to claim that abstract idea-ownership is possible. Quite the opposite… those who claim that private contracts cannot provide copyright protection feel the need to impute such nonsense to my side – in order to create the appearance of a rebuttal (or to spam this thread to the point where no one will read the responses to the original posting).

Privatized copyright is based on contractual agreements for the use of private property – which would stipulate that unauthorized sales and replications are not allowed – and that in cases of any violations of thse terms, any resulting profits and/or copies will belong to the original owner. I explained that the contract with a thief is not necessary in my previous post, as well as why third party violations of contracts can never become a loophole or “license to steal”.

Regards.

To those who are squarely against any form of copyright (via property or contract), here is a situation: Let’s say that I have spent countless nights writing an original book, and now I wish to sell copies of it to consumers. However, shortly after my final draft is complete, Jones breaks into my house and steals my final draft. Jones is eventually arrested and my stolen property is returned, but before his arrest, Jones allowed Smith to make a copy of my book. Smith begins to sell copies of my book for a very low price, and refuses to allow me to share in any of his profits.

In your theory of property rights and contracts, has Smith done anything wrong? If he has not, then is there anything I could have done to make his actions wrong (e.g. stamping ‘copyright’ on every draft of my book)? If the answer is still “no”, then to me, your theory of property rights and contracts is flawed.

It’s similar to ending a lecture with “…and therefore, nothing is wrong with murder.” If I consider the conclusion to be wrong on its face, there’s no point in discussing the definitions and arguments leading to that conclusion.

Blah, more enlightened opponents of contractual copyright protection would say that Jone’s actions didn’t only result in a temporary loss of the original book – but also in economic takings from you. He would have to recover your loss from Smith. This is not a contractual copyright issue, but justice would be served.

—-

But what if you borrowed your copy to Jones (he didn’t steal it), and Jones allowed Smith to make a copy of your book. Smith begins to sell copies of my book for a very low price, and Jones refuses to allow me to share in any of his profits?

In that case, you clearly put a great effort to write that book, but you were lazy to “stamp” a copyright disclaimer on it – to inform what use of your property is not permitted. I think it would only be fair that you should pay the consequences of your own stupidity. When the government starts subsidizing people’s carelessness (by intervening and correcting the outcomes of non-aggressive actions of individuals) we can only expect more irresponsible behavior in general.

Blah, more enlightened opponents of contractual copyright protection would say that Jone’s actions didn’t only result in a temporary loss of the original book – but also in economic takings from you. He would have to recover your loss from Smith. This is not a contractual copyright issue, but justice would be served.

—-

But what if you borrowed your unpublished original to Jones (he didn’t steal it), and Jones allowed Smith to make a copy of your book. Smith begins to sell copies of your book for a very low price, and Jones refuses to allow you to share in any of his profits?

In that case, you clearly put a great effort to write that book, but you were lazy to “stamp” a copyright disclaimer on it – to inform what use of your property is not permitted. I think it would only be fair that you should pay the consequences of your own stupidity. When the government starts subsidizing people’s carelessness (by intervening and correcting the outcomes of non-aggressive actions of individuals) we can only expect more irresponsible behavior in general.

Information is not a scarce recourse but the original material object and property is. The right to make contracts about property is derived from the right of property.

If any derived principle from the right of property is impractical or very costly in certain circumstances and situations to enforce in a libertarian society, I am sure, because it is in everyone’s interest, that law enforcement agencies, insurers, arbitrators etc will solve such problems and work them out.

Björn Lundahl
Göteborg, Sweden

Sorry, “scarce recourse” should be” scarce resource”.

Björn Lundahl

That is true Björn. Denying the right to establish a contractual copyright is the denial of the property rights, but that shouldn’t surprise if such statement comes from person who denies the very basis for property acquisition.

What if that person tells you that we don’t own our work (labor)? You don’t even have to know any physics and the fact that our body is made of energy that produces the work. Forget that – he’ll accuse you of scientism for reminding him of reality in which our actions take place. Every true Austrian knows that by denying ownership of our labor – you deny that property is generated when we first use it (when we apply OUR labor to it, before anyone else did). If we do not come to own unclaimed things by mixing our labor with them (with “USE”) that implies that we do not own ourselves. For, what is the self-ownership – but our right of first use (first labor/energy) that is mixed with our matter?

If someone denies self-ownership, of course that they will deny contracts. They think that we do not posses our property as the result of application of our labor or self-ownership… No, they think that we only “control” things, because “society” (whatever that means) decided at one time that this is the most optimal way to avoid conflicts. That implies that same “society” can deny you property rights when you want to write a voluntary contract about the copyright with your customer. That also implies that this “society” can use the excuse of “avoidance of conflict” to deprive you from your property, if the “proletariat” threatens with aggression.

The question that comes to my mind is: who would pay such an imposter to pose as an Austrian? Is it possible that there is no conspiracy and that this person is simply deprived of common sense (like a lawyer who doesn’t know the definition of theft, and never heard of implicit contracts)? That is a tough one to break. We’ll probably never know.

Sasha:

Why bother quoting the narrow areas where we agree while simply ignoring the far more significant areas where we clearly disagree?

I said: “Thus, if the original was not stolen, but instead copied in-place, then the copies were not made through an illegal act and the buyer cannot shift the fines onto the copier.”

Do you agree or disagree?

I also said: “Think of it this way: If I were to see this object and then manipulate my property in any other way — not in imitation of the object — then I believe you would agree that no contract you might have with the keeper of this object could cause my property to become yours as a result. (Otherwise you could effectively steal all my property simply by placing some huge object where I can’t avoid observing it.) However, the only difference between this and the scenario we have been discussing is that the former manipulation does not employ the idea or pattern of the original object, and the latter manipulation does. In other words, you are placing the idea or pattern in a special, protected position, granting it additional exclusive rights. You are making the idea itself subject to ownership, which you claimed previously you did not support.”

Again, do you agree or disagree? What other difference do you see between those two scenerios? (Or, if there is no other difference, how is this in any way different from granting property rights in the ideas themselves?)

—–

“Blah”: Obviously, if you start with a particular end-goal in mind (“copyrights must exist”) then you’re going to ignore all rational arguments to the contrary. Who cares if the logic is broken beyond repair, as long as you can hold on to your preconceptions? The same irrational process can be used to “justify” any institution (in one’s own mind, anyway): the State, the Mafia, whatever you wish:

To those who are squarely against any form of [criminal organization] (via [the State] or [private gangs]), here is a situation: Let’s say that I have spent countless nights [planning a heist], and now I wish to [carry out my plan]. However, shortly after [the heist] is complete, [the police] break into my house and [take back what I stole]. [Despite putting all that work into planning the heist, I don’t get to take advantage of any of the spoils. This proves that the theory of private property is broken.]

(That wasn’t meant as a proof, just a warning or example. Don’t try to read too much into it.) On the other hand, for those who wish to reason like human beings it is unthinkable to reject an argument merely because one does not like its conclusions. One can only rationally reject an argument on the basis of a false first principle, or a logical fallacy in the chain of reasoning between the true first principles and the conclusions. Neither you nor Sasha have demonstrated either at this point. (Argumentum ad absurdum only applies when both sides agree that the conclusions are absurd; if it were otherwise one could use it to reject any unwanted conclusion.)

—–

Sasha: Let’s not turn this into a deep philosophical (or ad hominem) argument unnecessarily; this has nothing to do with whether one ownes one’s own energy. I wrote the following in response to your prior conflict with Stephen; I think it is worth quoting here:

“Sasha’s error was not in claiming that one could own one’s own energy (which is plainly true, being merely a restating of the principle of self-ownership), but rather in equating the concept of work in physics with the concept of labour in economics. It should be clear that ownership of one’s body includes ownership of the energy that makes up that body and allows it to function, just as ownership of a battery includes ownership of the electrical energy stored therein. However, that does not imply what he was attempting to derive from it, namely that a labour contract is an exchange of energy for money. In most labour the energy expended or transferred is irrelevant; it is the transformation of a higher-order good into a lower-order good that defines the concept of labour and forms the basis for economic gain. Some forms of labour may even leave the labourer with more energy than it started with (e.g. taste-testing).

That is exactly how Murray Rothbard phrased it in his mousetrap example – and he is a great Austrian, right?

But he’s not infallible. This was one of his ideas that is simply mistaken, as Stephan has shown. Please stop bringing it up – it makes you look silly, like someone bringing up Einstein’s “God doesn’t play dice” comment to argue that quantum mechanics is wrong.

Blah,

“It’s similar to ending a lecture with “…and therefore, nothing is wrong with murder.” If I consider the conclusion to be wrong on its face, there’s no point in discussing the definitions and arguments leading to that conclusion.”

Don’t you think that intuition merely forms a useful basis on which to begin dialog regarding the justification of a certain ethical proposition? In the case of murder, all of our intuition of its criminal nature turns out analytically to be quite correct. All of the definitions and arguments have been discussed and analyzed. The undeniable conclusion: “it is easier to commit murder than to justify it”. On the other hand, a thorough discussion and analysis of the essence of property, leads us to this: property only makes sense when applied to scarce or rivalrous physical goods. IP does not qualify as property. Reason leads us to this conclusion when we carefully recognize the purpose of ethics and property in the first place: the provision for the avoidance of conflict over scarce means.

So while sometimes reason can confirm our intuitions, sometimes it shows us that our initial intuition, at least, can be mistaken on further analysis. Therefore, when someone offers a reasoned argument for something that at first strikes us as wrong, we can only be justified in giving that argument a fair hearing before deciding on its merits. And this hearing must be done with full awareness of what it takes to justify a proposition: correct and self-consistent logic throughout the argument.

Here we go again…

Jesse,

I selected your small quote, because that was the only part that pertained to my arguments. Everything else was completely unrelated.

Did I say that we sell our energy? We sell our labor by applying our energy to some means of production. There is no machine that is 100% energy efficient, but that is irrelevant. The fact that we own and sell our labor (direct product of energy) cannot be used as an argument against labor-ownership.
__________________________________________________

YOU SAID: “Thus, if the original was not stolen, but instead copied in-place, then the copies were not made through an illegal act and the buyer cannot shift the fines onto the copier.”
__________________________________________________

I SAID: “But what if you borrowed your unpublished original to Jones (he didn’t steal it), and Jones allowed Smith to make a copy of your book. Smith begins to sell copies of your book for a very low price, and Jones refuses to allow you to share in any of his profits?

In that case, you clearly put a great effort to write that book, but you were lazy to “stamp” a copyright disclaimer on it – to inform what use of your property is not permitted. I think it would only be fair that you should pay the consequences of your own stupidity. When the government starts subsidizing people’s carelessness (by intervening and correcting the outcomes of non-aggressive actions of individuals) we can only expect more irresponsible behavior in general.”

So what was wrong with that answer? Why did you feel the need to ask me again about this kind of scenario?

__________________________________________________

YOU ALSO SAID: “Think of it this way: If I were to see this object and then manipulate my property in any other way — not in imitation of the object — then I believe you would agree that no contract you might have with the keeper of this object could cause my property to become yours as a result. (Otherwise you could effectively steal all my property simply by placing some huge object where I can’t avoid observing it.) However, the only difference between this and the scenario we have been discussing is that the former manipulation does not employ the idea or pattern of the original object, and the latter manipulation does. In other words, you are placing the idea or pattern in a special, protected position, granting it additional exclusive rights. You are making the idea itself subject to ownership, which you claimed previously you did not support.”
__________________________________________________

There is that obsession! You were not able prove that I “make idea itself subject to ownership”, no matter how hard you try. Why couldn’t I sell my design to a producer by creating a contract which states that copying of some specified original parts/mechanisms of that object is also not permitted? Basically, I would have the advantage of choosing and reserving a particular design. If you can than make the same type of product by redesigning my idea – you should have a freedom to that. You would be almost like Matsushita (Panasonic) compared to Sony…

By the way, I couldn’t understand what you tried to say with: “stealing all your property by placing some huge object where you can’t avoid observing it”… I can only guess what kind of twisted idea you will credit me for : ) Didn’t I already say that i don’t think owner’s negligence would not be rewarded; that public displays would not be protected; and that accidental acquisitions of property could possibly be sanctioned. I really thought we concluded our discussion after you stated that my explanation of contractual copyright protection was right, reasonable, and consistent. Oh, well…

——

Peter,

Please enlighten us and explain me where Rothbatd was incorrect when he defended the right to use contracts in order to allow some uses of your product – and prohibit uses like replication and sales? Where did Stephan even created a challenge to these basic property rights?

—–

Paul,

Do you support the right to make contract that would allow the user to do anything with your product, except to replicate and sell it?

Information is not a scarce resource but the original material object and property is. The right to make contracts about property is derived from the right of property. If information in itself, is a scarce resource or not, has then, nothing to do with it.

Well then, I own justly (in accordance with libertarian ethics) a scarce resource. Because I own it, I have all the rights to that property. I choose to sell all the rights to that property to somebody, except the right to copy it. What is, logically, wrong with that? I just can’t get it. How can anyone “prove” that there exists any flaw with this theory? If this theory is not applicable in all situations, well that might be so, but what we are debating about are in those cases which it is applicable.

Björn Lundahl
Göteborg, Sweden

We do not own our labor. Our labor is not an ownable thing. Labor is just one activity we engage in; one thing we do with our bodies and other resources. We own our bodies and other scarce resources we homestead or contractually acquire from a homesteader. This ownership right is all that is needed to profit off of one’s “labor,” just as my ownership of my body and home and printing press is sufficient to protect a “right to free speech”.

Rothbard is correct that you can have a private contract with someone. Where he went astray was in assuming that if A grants B only limited rights in a thing, then this implies that C is limited from using information he gained from that thing, if B was contractually bound not to let C have this information. Rothbard basically says that C cannot use the information because he can only have title to something from B if B had good title to it. But this assumes that C *needs* “title” to the information in order to use it. He does not. There is no title to information.

I gave several examples in my paper. But consider this simple one. A, a man, has a sex-change operation and becomes a woman. This information is private. A shows the draft of her memoirs to B, on the condition that B not reveal to anyone else the things told in the book. B spills the beans and tells C that A is a transsexual. C tells D, and so on, and it becomes widely known.

Now E, a heterosexual man, was thinking of asking A out on a date, before all this happened. When E finds out that A is really a former man, E decides not to ask A out.

By the copyright theory Rothbard uses, E is actualy violating A’s rights. After all, if E didn’t have the information about A’s former life, E *would have* asked A out. And E does not have “title” to this information and is therefore not entitled to rely on it in making decisions. Etc.

The only way to weasel out of this implication is to deny that information is owned, which undercuts Rothbard’s attempt to find a way to bind third parties to a private contract.

None of Sasha’s musings about “energy” or “labor ownership” has anything to do with this.

Sasha:

This will be my last response.

Part 1: “The fact that we own and sell our labor (direct product of energy) cannot be used as an argument against labor-ownership.”

I assume from the context of the previous discussion that by “labor-ownership” you are referring to selling your future labor as one would sell property: transferring its property title to someone else, who can then compel you to perform the labor on the basis of their ownership of that title. I will not say that this is right or wrong; some would say that it should be possible to voluntarily sell oneself into slavery like this; some say otherwise. Rothbard argued for the inalienability of the body and its labor on the basis that it is impossible to voluntarily give up control of the body to another:

“The distinction between a man’s alienable labor service and his inalienable will may be further explained: a man can alienate his labor service, but he cannot sell the capitalized future value of that service. In short, he cannot, in nature, sell himself into slavery and have this sale enforced—for this would mean that his future will over his own person was being surrendered in advance. In short, a man can naturally expend his labor currently for someone else’s benefit, but he cannot transfer himself, even if he wished, into another man’s permanent capital good. For he cannot rid himself of his own will, which may change in future years and repudiate the current arrangement. The concept of “voluntary slavery” is indeed a contradictory one, for so long as a laborer remains totally subservient to his master’s will voluntarily, he is not yet a slave since his submission is voluntary; whereas, if he later changed his mind and the master enforced his slavery by violence, the slavery would not then be voluntary.” (Rothbard, The Ethics of Liberty, Chapter Seven)

Part 2: “In that case, you clearly put a great effort to write that book, but you were lazy to “stamp” a copyright disclaimer on it – to inform what use of your property is not permitted.”

I believe that we are in agreement on all but this point: I do not agree that “stamping” a copyright disclaimer on an object is sufficient to create a contractual relationship. Through this stamp you are attempting to place restrictions on what I already had the right to do: to observe your object (without trespass) and then manipulate my own property in a way somehow related to what I observed. (Replication is a “use” but not an independant right; to prohibit replication you would have to restrict either my ability to observe the object or my ability to manipulate my own property. Upon seeing the “stamp” I have already observed the object, so that cannot be restricted, and restricting manipulation of my own property would itself be trespass.) This is not something that can be done with an implicit contract, because it grants one no additional rights to separate acceptance of the terms from non-acceptance. (This is the same reason that a piece of paper saying, “By reading this sentence you agree to pay me $50,” is not an enforceable contract.)

Stephan’s example in which he tries to refute Rothbard’s copyright theory is absurd.

———–
STEPHAN SAID: “A, a man, has a sex-change operation and becomes a woman. This information is private. A shows the draft of her memoirs to B, on the condition that B not reveal to anyone else the things told in the book. B spills the beans and tells C that A is a transsexual. C tells D, and so on, and it becomes widely known. Now E, a heterosexual man, was thinking of asking A out on a date, before all this happened. When E finds out that A is really a former man, E decides not to ask A out. By the copyright theory Rothbard uses, E is actualy violating A’s right”
————

What “right” of person A did person E violate according to Rothbard’s theory??? Stephan assumes that it is your “right” to be asked on a date – and he uses that false assumption to imply that Rothbard was incorrect. That is simply ridiculous.

According to Rothbard, a person B would be liable for any damages caused to person A (because he violated contractual agreement) – and that’s the end of it. Some third party could only be liable to a person B – if he/she stole those memoirs of the transsexual – hence causing contractual ramification against person B.

Stephan obviously didn’t understand that Rothbard never needed to bind third parties to a private contract.

————————————————–

Jesse,

At least you understand that we own our labor, because it is a real, physical product of our body. If someone denies labor-ownership, he/she automatically denies self-ownership, as well as the right to acquire property by applying OUR LABOR (OUR PROPERTY) onto some unclaimed object.

The fact that our self-ownership is not alienable does not deny that we own ourselves. The same goes for labor. I you read my postings more carefully you would have seen that I also oppose slave contracts. But that has nothing to do with the fact that a person is still committing a theft if he/she does not deliver labor for which he/she got paid. He will not be forced to work, but he will have to pay damages. The same goes for any producer of non-durable goods that spoil or disintegrate before the court can order them to be delivered.

As far as contractual copyright protection goes, I thought that it was clear that it is the contract in which the buyer agrees that he will not use the purchased product for creation of copies. So he voluntary agrees that observation of that product during replication is not permitted – and that he is accepting not to “manipulate” his property while doing this prohibited use. There is no trespass in that case.

Bj?rn> Information is not a scarce resource but the original material object and property is.

What on God’s earth is an “original material object,” when it comes to mass reformed by humans to meet their desires? I say “God’s earth” because “original material object” sounds mystical, as if the original object somehow just appeared by the wave of a wand. Do you mean a reference design? How did the reference design come into being? What if the reference design gets destroyed in a fire; how is a new (original material object) reference design created? I can tell you: the reference design (object) came into being via the abstraction capabilities of human beings, and is recreated at will via the same abstraction. Indeed it is alone the capability of abstraction — symbolic thought and communication — that makes people different from the beasts. Symbolism has no physical reality by its very definition. That the medium of expression is physical is of no relevence.

I am an engineer who has gone through more product cycles than I can remember. The notion of “original material object” is incomprehensible to me (who has gone through the work of creating particular objects). (Which original object? The first napkin drawing? The first system diagram? The first breadboard? The first prototype? The first pilot run? The first one to roll off the assembly line after release to production? …) The principle of intentional mass reformation by humans is via the principle of abstraction, not via a particular physical object that someone simply decides to call “the reference physical object.” So the point of that is ideas are pure abstraction. It is via abstraction that the copying we refer to occurs.

Bj?rn> I choose to sell all the rights to that property to somebody, except the right to copy it. What is, logically, wrong with that? I just can’t get it.

I don’t see anything wrong with that, and I haven’t read anyone else saying there is something wrong with a voluntary contract between two parties. The question was about binding a third party.

Bj?rn> If this theory is not applicable in all situations, well that might be so, but what we are debating about are in those cases which it is applicable.

It is certainly applicable to agreeing parties. It needs to be shown that ideas (abstractions) are property for it to apply to “third” parties. I have nothing against such a theory — no bias whatsoever. I just want to hear it. Since the binding of third parties is a positive assertion that ideas (abstractions) are property, the burden is upon those who assert that positive.

Physics Professor> “Where is your homework?”

Student> “The dog ate my homework.”

Physics Professor> “Preposterous! So what? Just do it again right now. It’s not like ideas are abstract. Everything has a physical basis. Why would you need a so-called ‘abstraction’ to re-create your homework?”

What if the reference design gets destroyed in a fire; how is a new (original material object) reference design created?

I just realized how funny that sounds. “The ‘new’ original, as opposed to the ‘old’ original.” {laughs} One can’t even speak in terms of “the original” in terms of physical objects manifesting ideas (abstractions) without getting bogged down in ridiculous language.

Sasha:

I wasn’t going to do this, but…

“But that has nothing to do with the fact that a person is still committing a theft if he/she does not deliver labor for which he/she got paid. He will not be forced to work, but he will have to pay damages.”

This is exactly the point on which we disagree — not necessarily about the end result, but about the reason for the payment. According to Rothbard (TEoL, Ch. 19) there are no damages owed simply as a result of not “delivering” labor. The payment for non-“delivery” of the labor is not determined by a court. The only circumstance under which payment would be owed would be if the contract specified what Rothbard termed a “performance bond,” a conditional title-transfer activated if the labor is not performed; the amount of the payment would be specified in the contract separate from the terms which delineate compensation for the labor itself.

“As far as contractual copyright protection goes, I thought that it was clear that it is the contract in which the buyer agrees that he will not use the purchased product for creation of copies. So he voluntary agrees that observation of that product during replication is not permitted – and that he is accepting not to “manipulate” his property while doing this prohibited use. There is no trespass in that case.”

As for this last part, I agree. This is, however, a long way from your original position: “In this way, no loophole is possible: every unauthorized copy belongs to me and it is protected by the original agreement upon which that copy came into existance.” There is indeed a serious “loophole” in contract-based copyright: communication of the underlying pattern, sufficient to create a copy of the object, from any buyer to some third party (intentionally or accidentally, but without theft or other trespass by the third party) can place no liability on the third party, nor restrict duplication of any subsequent copies (except by those who have already entered into the contract). It is, in other words, equivalent to a trade-secret or non-disclosure agreement, but without the secrecy that allows NDAs to remain effective.

Jesse,

If you get paid for your labor in advance and you refuse to deliver it – according to Rothbard you are committing a theft. No one can force you to work on some other day – and you did not steal money that was handed to you – but you owe damages for undelivered services.

ROTHBARD: “Suppose that Smith, when making his agreement for lifelong voluntary obedience to the Jones Corporation, receives in exchange $1,000,000 in payment for these expected future services. Clearly, then, the Jones Corporation had transferred title to the $1,000,000 not absolutely, but conditionally on his performance of lifelong service. Smith has the absolute right to change his mind, but he no longer has the right to keep the $1,000,000. If he does so, he is a thief of the Jones Corporation’s property.”

But note that Smith could not steal the money that was handed to him voluntarily. He stole by not delivering his part of the contract and spending that labor elsewhere.

As far as your “loophole” goes, I don’t see how you could pull it off. If my product gets copied, you will still be liable for those copies. Whether you “communicated” my copyrighted novel (for example) via telephone, or whether you gave it to someone personally – it is not my problem.

Remember, you contractually agreed that “observation” of that product during replication is not permitted. Your responsibility is to ensure that our contract doesn’t get violated by unauthorized copies made from that item – and you would make sure that they don’t. The only way out for you is to hold that third party liable for theft. That’s it.

—

I see that Greg is cracking himself up, but he really didn’t say anything funny, nor he managed to deny the right of owners to contractually restrict some

I can see that we are not coming to an agreement on this anytime soon.

Sasha: “The only way out for you is to hold that third party liable for theft.”

So is it theft? Are we to treat it as theft as a convenience to closing the third-party loophole? Or do we have more objective means of settling this issue?

If I do nothing to steal or damage your’s or the seller’s physical property, but use my justly owned physical property to replicate your’s or the seller’s property, am I committing theft?

What defines theft? Well, it is when someone damages or steals the property of another. I have not done so. I do not claim any of your’s or the seller’s property, only my own. I just used my own property to produce a replica.

The only way to bind me to the agreement between you (the buyer/user) and the seller is to get me to explicitly agree (voluntarily) to its terms prior to my coming in any sort of contact with the object. Therefore stamping “copyright” on a document does not protect it from replication. It merely expresses the owner’s desire to not have it replicated–this cannot be legally binding as there is no way to accept/reject the agreement as a reader. Therefore my/Jesse’s/Stephan’s assertions regarding the third-party loophole are valid.

Sasha:

Stephan’s example in which he tries to refute Rothbard’s copyright theory is absurd.———–
STEPHAN SAID: “A, a man, has a sex-change operation and becomes a woman. This information is private. A shows the draft of her memoirs to B, on the condition that B not reveal to anyone else the things told in the book. B spills the beans and tells C that A is a transsexual. C tells D, and so on, and it becomes widely known. Now E, a heterosexual man, was thinking of asking A out on a date, before all this happened. When E finds out that A is really a former man, E decides not to ask A out. By the copyright theory Rothbard uses, E is actualy violating A’s right”
————

What “right” of person A did person E violate according to Rothbard’s theory??? Stephan assumes that it is your “right” to be asked on a date – and he uses that false assumption to imply that Rothbard was incorrect. That is simply ridiculous.

I agree it’s ridiculous. But it would be an implication of the idea of defending “copyright” the way Rothbard tries to.

This is all explained here, pp. 35-41.

According to Rothbard, a person B would be liable for any damages caused to person A (because he violated contractual agreement) – and that’s the end of it. Some third party could only be liable to a person B – if he/she stole those memoirs of the transsexual – hence causing contractual ramification against person B.

No no, see Rothbard here:

There is, however, an exception to the right to use and disseminate the knowledge within one’s head: namely, if it was procured from someone else as a conditional rather than absolute ownership. Thus, suppose that Brown allows Green into his home and shows him an invention of Brown’s hitherto kept secret, but only on the condition that Green keeps this information private. In that case, Brown has granted to Green not absolute ownership of the knowledge of his invention, but conditional ownership, with Brown retaining the ownership power to disseminate the knowledge of the invention. If Green discloses the invention anyway, he is violating the residual property right of Brown to disseminate knowledge of the invention, and is therefore to that extent a thief. […]A common objection runs as follows: all right, it would be criminal for Green to produce and sell the Brown mousetrap; but suppose that someone else, Black, who had not made a contract with Brown, happens to see Green’s mousetrap and then goes ahead and produces and sells the replica? Why should he be prosecuted? The answer is that, as in the case of our critique of negotiable instruments, no one can acquire a greater property title in something than has already been given away or sold. Green did not own the total property right in his mousetrap, in accordance with his contract with Brown—but only all rights except to sell it or a replica. But, therefore Black’s title in the mousetrap, the ownership of the ideas in Black’s head, can be no greater than Green’s, and therefore he too would be a violator of Brown’s property even though he himself had not made the actual contract.

Note here the bold sections: Rothbard is saying that Black, who just *sees* the Brown mousetrap in possession of Green, cannot use the ideas he gets from seeing it–why? Because Green has no right to use the ideas, so why would Black be able to, since he can’t get greater rights from Green than Green has. This is where Rothbard has to assume, and does assume, that there are property rights in ideas–for if there are not, why does Black *need* to get rights “from Green”? Black sees an object–he learns some things from this perception. He acts based on this information. Why does he need any “title” to the information–either from Green or Brown? He doesn’t, unless information *has* title–is ownable.

Stephan obviously didn’t understand that Rothbard never needed to bind third parties to a private contract.

Oh, really? What is he doing above when he says Green can be prosecuted b/c of this?

At least you understand that we own our labor, because it is a real, physical product of our body. If someone denies labor-ownership, he/she automatically denies self-ownership,

This is just stupid. To own one’s body means the exclusive right to control its use. Once you have this right, you can do whatever you want with your body–sleep with it, have sex with it, study with it, enjoy music with it, or perform labor with it that someone else pays you for. Voila!

as well as the right to acquire property by applying OUR LABOR (OUR PROPERTY) onto some unclaimed object.

Labor is not property. It is what we do with our bodies.

If you get paid for your labor in advance and you refuse to deliver it – according to Rothbard you are committing a theft.

Funny you cannot answer the essential question: what is it theft of? What *exactly* is being stolen: And when did the theft occur?Was it a theft of the money paid? But then when was the act of theft–the moment you received it, or the day you were supposed to perform and did not? It can’t be either. It can’t be the former, because you can’t retroactively steal something–if the money is given to you volutnarily and you the owner consents to you spending it, he is giving you title to it. It is NOT theft. and it can’t be the day you don’t perform–say that I don’t perform and at the same time I offer to repay the money–where is the theft? I’m just returning the money. Or, what if I’m penniless on that day–*what* money am I today “stealing”–non-existent money?

The idea of lack of performance, or being bankrupt, being some kind of theft is just confused. IT’s a failure to think out precisely what you are maintaining.

No one can force you to work on some other day

Sure they can. Slaveowners do that. And prison guards do it.

– and you did not steal money that was handed to you – but you owe damages for undelivered services.

Ah, now it’s not theft, it’s damages. What if you don’t have any money to pay as damages? Is it theft then? If so, theft of what? Of non-existent money?

ROTHBARD: “Suppose that Smith, when making his agreement for lifelong voluntary obedience to the Jones Corporation, receives in exchange $1,000,000 in payment for these expected future services. Clearly, then, the Jones Corporation had transferred title to the $1,000,000 not absolutely, but conditionally on his performance of lifelong service. Smith has the absolute right to change his mind, but he no longer has the right to keep the $1,000,000. If he does so, he is a thief of the Jones Corporation’s property.”

R was wrong here.

But note that Smith could not steal the money that was handed to him voluntarily. He stole by not delivering his part of the contract and spending that labor elsewhere.

So on the day you don’t-perform, this not-performing … a non-action … is an act of … theft… of… what? Of money that does not exist? How can you steal something that does not exist?

Remember, you contractually agreed that “observation” of that product during replication is not permitted. Your responsibility is to ensure that our contract doesn’t get violated by unauthorized copies made from that item – and you would make sure that they don’t.

Sure–but that only binds the party to the contract. How does this bind third parties? It doesn’t.

The only way out for you is to hold that third party liable for theft. That’s it.

Who cares that that’s the only way out? Why are third parties obligated to help the second party live up to his contractual obligations?

As for B (the buyer-user), he can be held responsible for negligence/conspiring to break the terms of the agreement.

This only really applies to a non-disclosure-agreement.

Let’s say employer A has employee B sign a contract (NDA) before divulging some inside information to B. B agrees, signs. B takes confidential paper home with him (assuming this doesn’t break the contract). His son, C, runs a blog commenting on the industry that A is in. His son finds his father’s (B’s) confidential papers and puts the inside information on his blog.

I (and, not to assume to much, but I would guess e.g. Stephan and Jesse) would hold that B may be fired and perhaps fined (assuming said fine was clearly stated in the NDA) for this negligence. But A has no recourse against C (and I believe Sasha has agreed this point above).

Does B have any legal (he is his parent, so he could ground him I suppose) recourse against C? What about D, who, after reading C’s blog, reported the news story in the paper? Is B legally responsible for D’s actions? Is C? What about Z? Where does B’s responsibility end? Please provide an objective framework.

I’ll provide mine: A has no legal recourse against C. Or D. Or Z. Neither does B. B is responsible for his own negligence, and as terms of the agreement between B and A, may be fired/reprimanded/fined. Legally–it ends there. Every attempt I’ve seen to close this loophole has been either a case for ideas as property (Sasha claims his argument is not this), or it is mere wishcasting.

Jordan, you are not interpreting my statement correctly. That is the only reason why we cannot come to an agreement any time soon.

I didn’t say that the act of copying is theft. I said that only in cases of theft you can blame some third party for your contract violations… otherwise, you will be liable. Read my postings more carefully and you will see that your assertions regarding “the third party loopholes” are completely invalid.

Contractual agreement is not merely seller’s “desire” – it is a binding agreement. By accepting my copyrighted book, you accept terms and conditions stated there – that this book will not be replicated or sold. In case of any violation of this contract, I will hold you liable in the amount of all unauthorized copies and/or profits they yield. The only way you can save yourself from this liability is to prove that you were not negligent or an accomplice in this contract violation – and you can hold the third party liable, in order to give me those copies and money (as our contract demands).

There are no loopholes… And we all know the definition of theft now : ))

greg

Stephan Kinsella wrote:

“First, what about methods? There is no way to stamp “copyright” on a method; yet that too is an invention that ought to be protectable if a new apparatus us. And anyone with familiarity with patent law and the difficulties of defining the metes and bounds of an invention (by means of “claims”) will realize that stamping something “copyright” is an utterly unworkable way of specifying the invention that is to be claimed. Moreoever, anyone familiar with the utter lack of objectivity and inherent ambiguity and vagueness of IP concepts will realize that it is not possible to arrive at an objective identification of what invention one is entitled to have ownership over etc.”

My comment to above statement was:

“If this theory is not applicable in all situations, well that might be so, but what we are debating about are in those cases which it is applicable.”

”Original material object and property” =

1. A first form from which other forms are made or developed: Later models of the car retained many features of the original.
2.
a. An authentic work of art: bought an original, not a print.
b. Work that has been composed firsthand: kept the original but sent a photocopy to his publisher.
http://www.answers.com/original%20

Björn Lundahl
Göteborg, Sweden

Sasha: “But note that Smith could not steal the money that was handed to him voluntarily. He stole by not delivering his part of the contract and spending that labor elsewhere.”

I believe Rothbard stated this inconsistently (or just awkwardly, perhaps) with respect to his title-transfer contract theory. As the condition of the contract requires lifelong service, the title to the $1e6 cannot transfer to Smith until that service is completed. Whether Smith continues to serve Jones Corp. or not, Jones continues to hold the title to the $1e6 and Smith must return it to Jones on request. The theft is not in failing to deliver the service, but rather in refusing to return Jones’ property, which Smith never owned to begin with, as he had not yet fulfilled the condition.

There is a way to formulate a contract which would be closer to what Rothbard described: the advance can be paid outright, the title transferred unconditionally and immediately to Smith, but with a conditional transfer of the same amount (a “performance bond”) back to Jones should Smith change his mind. Again, however, any theft would not be in failing to deliver the specified services, but rather in the failure to relinquish the performance bond, now owned by Jones. If the bond is relinquished without a fight there is no theft at all, despite the absence of service.

“Remember, you contractually agreed that “observation” of that product during replication is not permitted. Your responsibility is to ensure that our contract doesn’t get violated by unauthorized copies made from that item – and you would make sure that they don’t. The only way out for you is to hold that third party liable for theft. That’s it.”

Sure, if I’m a buyer and agreed to a contract with you I can be held liable for any copies. I’m not saying there’s a legal way out for me as the buyer. However, I can only pass on the fines the contract calls for to a third party if that third party actually trespassed against me first. If I instead allowed that third party to observe the object (intentionally or through negligence), or described it to them, etc., then I have no claim against them. You can fine me for any and all copies made, or for anything else the contract specifies, but the liability ends with me. If the object was stolen from me then the thief can be held liable for any fines resulting from the theft, but once again third parties who observed the stolen object would be beyond reach; the liability would end with the thief.

All it would take to exploit this “loophole” would be one buyer willing to risk the liability of being discovered as the origin of the copies, a risk which decreases sharply as the number of buyers increases. Think about it: if there are several hundred (or thousand!) copies of your novel out in the wild (the holders of which are all in a contract with you) and you discover some extra, unauthorized copies somewhere, how do you intend to find out where they came from? You don’t own the copies themselves, since they weren’t (demonstrably) made by buyers. You can’t force the owners of the copies to reveal their source(s); it could have been any one (or several) of the authorized buyers. You could word the contract so as to make them all liable, but then you’d have very few buyers. As I said before, the cost of enforcement would exceed the value of the product — far from making money through sales, you’d have to pay them to offset the liability for what could very well be the actions of others.

Stephan,

Your transsexual example was absurd, not because of Rothbard’s theory, but because it was completely irrelevant. You do not have a “right” to be invited out by someone. Rothbard would never argue that a person E is violating that transsexual’s right.

When it comes to the mousetrap example, Rothbard was obviously referring to the fact that if a third party caused you the liability by breaching our contract – you would hold him/her liable. He didn’t state it explicitly, but that is the only way to interpret this.

———–
STEPHAN SAID: “This is just stupid. To own one’s body means the exclusive right to control its use. Once you have this right, you can do whatever you want with your body–sleep with it, have sex with it, study with it, enjoy music with it, or perform labor with it that someone else pays you for. Voila!”
————-

If your “exclusive right” did not come from the fact that our body is also a “first user” mix of our energy with unclaimed matter- you imply that someone else gave us this right of self-ownership and that someone else could “justly” take it away.

Labor is more than something that we do with our bodies, because it is real physical phenomenon, through which we acquire property. If we didn’t own our labor, mixing it with unclaimed objects (first use) would not make those object our property. You would imply that “society” gave us right to “control” it, which is nonsensical and anti-libertarian.

————————————————–
STEPHAN SAID (regarding Rothbard’s claim that undelivered labor is theft if money is paid in advance):
“Funny you cannot answer the essential question: what is it theft of? What *exactly* is being stolen: And when did the theft occur?”
————————————————–

I already answered that question before: you committed the theft of labor that you owe to your employer, by spending it elsewhere. You were paid for it – and you were supposed to deliver it. You owe damages and not the labor – because you cannot go back in time to deliver it – just like a seller of spoiled non-durable goods cannot go back in time and deliver what was promised. Rothbard was not wrong here, just consistent with the fact that we own labor as a logical extension of self-ownership over our entire physical body – and the fact that we acquire property by mixing our property (labor) with objects that no one owns.

Stephan Kinsella wrote:“First, what about methods? There is no way to stamp “copyright” on a method; yet that too is an invention that ought to be protectable if a new apparatus us. And anyone with familiarity with patent law and the difficulties of defining the metes and bounds of an invention (by means of “claims”) will realize that stamping something “copyright” is an utterly unworkable way of specifying the invention that is to be claimed. Moreoever, anyone familiar with the utter lack of objectivity and inherent ambiguity and vagueness of IP concepts will realize that it is not possible to arrive at an objective identification of what invention one is entitled to have ownership over etc.”

My comment to above statement was:

“If this theory is not applicable in all situations, well that might be so, but what we are debating about are in those cases which it is applicable.”

”Original material object and property” =

1. A first form from which other forms are made or developed: Later models of the car retained many features of the original.
2.
a. An authentic work of art: bought an original, not a print.
b. Work that has been composed firsthand: kept the original but sent a photocopy to his publisher.
http://www.answers.com/original%20

Let me try to clear up something here. Copyright usually refers to original works of authorship–novels, poems, song lyrics. Patent covers inventions–new, non-obvious, and useful inventions–apparatuses (machines) or processes (methods) that achieve a useful result.

Each has its own problems. I was attacking the latter in my comment above–the problems of lack of objectivity of what is an *invention*. I did this even though Rothbard is using the word “copyright” because he apparently thought the concept of “copyight” could be used to protect *inventions*–the example he gives is of a mousetrap, which is the standard example of an inventive apparatus.

So there is a bit of confusion, introduced here by Rothbard’s confusing use of “copyight”.

Now, that is not to say that there is lack of objectivity in defining what is an original work of authorship. I think the problem is somewhat differnt than in the case of invention. In invention you have to claim what your inventino is. in copyrihgt, for works of authorship, it’s a bit different; I admit in a sense that it’s somewhat easier to identify original works of authorship; but even here there are problems. First, all such works are to some degree derivative or existing knowledge–they build on other works. Second, copyright is not just the right to reproduce the exact, literal pattern — it covers “similar” copies, and covers more abstract patterns underlying the literal pattern (plot instead of the actual words of the book); and it covers things like derivative rights and broadcast and performance rights etc.

STEPHAN SAID: ”
So on the day you don’t-perform, this not-performing … a non-action … is an act of … theft… of… what? Of money that does not exist? How can you steal something that does not exist?”

NON-ACTION????

You violated action axiom again – on this Austrian blog (blasphemy!).

Humans cannot “not act”. By acting contrary to your obligations for which you were paid (applying your labor elsewhere) you deprived your employer of something that belongs to him (paid service).

Your transsexual example was absurd, not because of Rothbard’s theory, but because it was completely irrelevant. You do not have a “right” to be invited out by someone. Rothbard would never argue that a person E is violating that transsexual’s right.

I thought it was cute. No, you don’t have a right to be asked out. But if you own an idea, that means that others who obtain it illegitimately have no right to *use* it. That means they can’t base their actions on it. That means they have no right to act in any way other than they would have in the absence of hte info. Etc. I’m just saying a case could be made, showing how absurd is the notion of owning ideas. See?

When it comes to the mousetrap example, Rothbard was obviously referring to the fact that if a third party caused you the liability by breaching our contract – you would hold him/her liable. He didn’t state it explicitly, but that is the only way to interpret this.

I disagree. He is trying to show some kind of contractual way to build up a version of copyright/patent. He is trying to show how the third party could be prosecuted for obtaining information from observing an object that the possessor was not supposed to let him see. When he says the third party is not entitled to use the information he has, he says it’s because you are not entitled to more than the title of the guy you got it from. I see no way to construe this except for the idea that you have title to information.Sure, it’s confusing–I think R was confused here, and this is incompatible with his property and contract views.

And let me say this: suppose you are right. All that means is that Rothbard did not put forth *any* way to stop an “innocent” third party from using information he has. For example: I’ve heard the theme to Star Wars many times. What’s wrong with me recording this and selling it? Etc.

STEPHAN SAID: “This is just stupid. To own one’s body means the exclusive right to control its use. Once you have this right, you can do whatever you want with your body–sleep with it, have sex with it, study with it, enjoy music with it, or perform labor with it that someone else pays you for. Voila!” ————-If your “exclusive right” did not come from the fact that our body is also a “first user” mix of our energy with unclaimed matter- you imply that someone else gave us this right of self-ownership and that someone else could “justly” take it away.

You’re the owner because you have a better claim than anyone else–this is your appropriation of the unowned thing–your being the first to use it. Since otehrs claiming it later also want to use it–control it–it is first “use” that matters. This is the objective link.

I don’t care if you want to call it “labor”. Go ahead. That does not mean you “own” labor, any more than you “own” your “first use” of a thing.

Labor is more than something that we do with our bodies, because it is real physical phenomenon, through which we acquire property. If we didn’t own our labor, mixing it with unclaimed objects (first use) would not make those object our property.

Why? I showed in my paper that creation, and labor, is both unnecessary and insufficient for property rights. If I use my labor to transform your hunk of marble into a statue, I don’t own the statue. Who does? The guy who already owned the marble. Even though he does not own my “labor”. So labor is insufficient. Likewise, I own the marble that I first find and emborder because I thereby establish the first objective link to it. It has nothing to do with owning my labor–it is unnecessary to introduce this silly concept and assumption.

“Funny you cannot answer the essential question: what is it theft of? What *exactly* is being stolen: And when did the theft occur?” ————————————————–I already answered that question before: you committed the theft of labor that you owe to your employer, by spending it elsewhere.

You committed theft of labor that you owe… that you did not perform… Sorry–where is the labor at, that I am stealing? By what act did I “steal” it? Not-acting is now stealing-the-thing-that-you-did-not-do…? Uhhh HO-kay….

You were paid for it

Well, if it’s an IT, I guess it has to have an owner.

– and you were supposed to deliver it.

You mean, my doing something is “delivering” the “doing of the something”? Or the somehthing itself?

You owe damages and not the labor – because you cannot go back in time to deliver it – just like a seller of spoiled non-durable goods cannot go back in time and deliver what was promised. Rothbard was not wrong here, just consistent with the fact that we own labor as a logical extension of self-ownership over our entire physical body – and the fact that we acquire property by mixing our property (labor) with objects that no one owns.

We don’t own things-our-body-does. We own our bodies. Being able to do what you want is just a consequence of owning the body. See?

NSK: “So on the day you don’t-perform, this not-performing … a non-action … is an act of … theft… of… what? Of money that does not exist? How can you steal something that does not exist?”

NON-ACTION????

You violated action axiom again – on this Austrian blog (blasphemy!).

Humans cannot “not act”. Whatever. The point is you cannot point to a specific action that is the theft in question. What is the action? When did I commit this act of theft? What action did I take to commit it?

By acting contrary to your obligations for which you were paid (applying your labor elsewhere)

Ah. So you are now penalizing me for doing something else instead of what you wanted me to do. Let’s say I’m in a coma on the day I’m supposed to perform, at 4pm. At that time, I suppose I begin the action of theft, even though I’m unconscious. Wow. Impressive. I must be Houdini.

you deprived your employer of something that belongs to him (paid service).

He owns my service, even though there is no service. Interesting concept. this is fun, Sasha, go on–I do like speculative science fiction.

Jesse,

If we agreed on a market transaction and you voluntarily paid me in advance, we basically transferred titles. I now own that money and you will own my good/service on the day that we specified in contract. If I fail to deliver your good/service – that is exactly what I stole from you. The fact that I would have to pay to you that amount of money, plus interest, plus some other damages, does not deal with what I actually stole from you.

As far as your “loophole” goes – you are missing the point. My original was sold to my publisher and I will hold him liable for any discovered copies. The publisher will than hold any discovered violator liable, regardless of who was the “middle man” in violation (our caught violator could provide that information).

Stephan, I showed that you are misinterpreting Rothbard – and that third party does not need to be bound to contract. If our contract gets violated you will be responsible to pay me in the amount of all unauthorized copies and/or profits they yield. If a third party caused you this liability, knowing of consequences that you would suffer, there is no doubt that you would hold that third party liable. There is no need to repeat this point any more.

Instead I’ll focus on this one
________________________________________________
“Ah. So you are now penalizing me for doing something else instead of what you wanted me to do. Let’s say I’m in a coma on the day I’m supposed to perform, at 4pm. At that time, I suppose I begin the action of theft, even though I’m unconscious. Wow. Impressive. I must be Houdini.”
__________________________________________________

It is not “what I wanted” you to do. It is what you OBLIGATED yourself to do. If you fall into a coma, you didn’t commit a theft, you were simply unable to deliver your service, just like any other seller who falls into a coma before he can deliver your paid products. Nothing impressive about that.

STEPHAN SAID: “He owns my service, even though there is no service”

Exactly! You spent that labor elsewhere, although it belongs to him. That’s why there was no service for your employer – you didn’t deliver it. Just like a pizza that I pay for in advance is mine, even if you decide to give it to someone else.

PS
Can you please start respecting action-axiom? There is no “non-action”. By doing something contrary to your contract, you can commit the ACT of theft – like when you watch TV instead of providing me the product or service that I already paid for.

STEPHAN SAID: “You’re the owner because you have a better claim than anyone else–this is your appropriation of the unclaimed thing–your being the first to use it.”

And why do I have a “better claim” that anyone else? Because I mixed my labor with some unclaimed object (transferring my property in labor to that thing) – or because the “society” (abstract term) decided to grant me that control? The former is so obvious and self-evident, while latter is a socialist nonsense.

Sasha:

Contractual agreement is not merely seller’s “desire” – it is a binding agreement.

Read my statement more clearly: I said that copyright is the seller’s desire, not contractual agreement.

You have yet again performed an Argumentum ad logicam , i.e., a straw-man argument. You change the argument we make and refute that instead of the argument put forth. You did this with Steven’s transsexual example and you’re doing it with my copyright example, by changing it from the act of putting “copyright” on a book and equating that to a contractual agreement. You have not addressed my issue–that the former is not an agreement and therefore cannot be binding.

Let’s simplify the issue: If B let’s C copy the work, despite B agreement to A that he would not, is B to be legally responsible for all the copies C makes, and all the copies D makes of C’s copies (ad infinitum)? Let’s assume the contract is written in such a way.

To legally hold B for C’s and D’s actions is a complete fallacy. You can fine B for leaking to C or being negligent if A can prove B was negligent/responsible: This is A punishing B for B’s actions. But you cannot jusifiably punish B for C’s or D’s actions–this is absurd, with absurd consequences.

To return to my previous example (which you most conspicuously ignored), if B is negligible and leaves confidential information available to C and C acts on that, it is legal for A to punish B for the leak–but not for anything that happens as a result of the leak.

Sasha: “I now own that money and you will own my good/service on the day that we specified in contract.”

You are clearly arguing that future labor is alienable here (“you will own my service”). However, your position is inconsistent: if labor is alienable, then the buyer must have the right to protect his/her property right in the labor against theft by compelling you to perform the promised service. (It would be defense of property, not aggression.) However, as I said before, I do not claim that labor must be inalienable. Rothbard did, and I am inclined to agree with him, but you are free to consider services to be alienable goods if you wish. Something similar can be accomplished without alienable labor through performance bonds, the only differences being that the “damages” are fixed in advance through the contract rather than determined by a court, and that the service cannot be compelled, as failing to perform it is not itself theft. I therefore see no need to alienate my labor and would not do so.

Sasha: “My original was sold to my publisher and I will hold him liable for any discovered copies.”

So far so good…

“The publisher will than hold any discovered violator liable, regardless of who was the ‘middle man’ in violation (our caught violator could provide that information).”

…until here, where you miss the point completely. If by “middle man” you mean the buyer/publisher who leaked the novel’s contents, then the so-called “violators” must be the rightful owners of the extra, unauthorized copies, third parties who have committed no trespass or theft and with whom you have no contract. They are not responsible for a bad contract the “middle man” or the publisher got themselves into. Violators of what, I ask? They have violated no contracts, and stolen no property. The “middle man” you speak of would be liable for any copies made, of course, but you/the publisher can neither hold the “violators” liable (no contract or trespass, remember) nor compel them to tell you who the “middle man” was (one cannot compel any service, including testimony, unless it has previously been alienated voluntarily, if that is possible).

If X agrees in a contract with Y that X will pay Y $50 every time someone breathes, that does not make anyone else liable for X’s loss should they happen to continue breathing. X agreed to a bad contract; X is responsible for his/her own loss. In the same way the third-party copiers are not liable for the buyer’s fines, even if those fines are conditioned on the copiers’ actions, unless they first committed a trespass against the buyer (theft, for example); then they would be liable for the effects of the theft, including any fines incurred as a result.

—–

Jordan: B could be fined for anything specified in the contract (which B agreed to voluntarily), not just those things which result from malice or negligence. This would, of course, be a poor contract for B, but it is not impossible or unjust (as it was voluntarily agreed to by B). C, of course, is not covered by the contract, and can only be made liable for fines imposed on B if C was the cause of those fines, through some action (such as theft) which already made C liable for damages: the fines would be secondary effects of a trespass committed by C against B.

JORDAN: “You have yet again performed an Argumentum ad logicam , i.e., a straw-man argument. You change the argument we make and refute that instead of the argument put forth”

But that is exactly what you did! You misinterpreted my statement about the third party’s theft – just to have something to respond to, when in fact you don’t have anything to say against my real arguments. By the way – Stephan’s transsexual example had nothing to do with our topic, and I only stated how absurd it was.

—-

Terms of use (including copyright clause) – are contractual agreements that you acknowledge when you decide to purchase the use of my product (they can even say: “by purchasing this product you agree…”). So it is a contract, regardless of what you say.

If B let’s C copy the work, despite B agreement to A that he would not, is B to be legally responsible for all the copies C makes, and all the copies D makes of C’s copies (ad infinitum)? ABSOLUTELY! The contract stated that B will be responsible for violations of those terms and he will be held accountable. Contracts must be respected, or there would be completely pointless.

To return to your previous example (which I most conspicuously ignored for its utmost absurdity), if B is negligible and leaves confidential information available to C and C acts on that, it is legal for A to punish B for the leak–based on their contractual agreement which defines the consequences of such negligence. And those consequences amount to all produced copies from that particular item and/or profits they yielded.
If B was not negligent and he was a victim of C, than he can turn to him to recover the amount that A is asking for.

JESSE SAID: “You are clearly arguing that future labor is alienable here (“you will own my service”). However, your position is inconsistent: if labor is alienable, then the buyer must have the right to protect his/her property right in the labor against theft by compelling you to perform the promised service. (It would be defense of property, not aggression.)”
——————————————-

No, you are misinterpreting me! The undelivered labor is in pat tense. Just like a pizza that is delivered to someone else and not delivered to me (although I purchased it). There is nothing to “protect” there, since we cannot send the violator back in time to correct his trespassing – but the buyer can claim that the theft occur and he can demand a compensation based on undelivered labor or pizza.

JESSE ALSO SAID:
“…until here, where you miss the point completely. If by “middle man” you mean the buyer/publisher who leaked the novel’s contents, then the so-called “violators” must be the rightful owners of the extra, unauthorized copies, third parties who have committed no trespass or theft and with whom you have no contract.”
___________________________________________________

That is another misinterpretation. When I say “violator” it is clear that I mean: a person who violates the contract with my publisher…

But like I said, I don’t care if there was a “middle man” in violation of my contract (if there was a negligence of part of my publisher), because I will be compensated based on our terms of use. If the publishing firm wants to recover from that, it will have to investigate who “leaks”, but that is not my problem.

Jesse:
I’ll concede that point. But each and every copy A wishes to fine B for would have to be proven to come from B’s negligence and it should be clearly stated in the agreement between A and B (just clarifying–I’m sure you’d agree).

Sasha: considering the concession I just made, I think we’re close to agreement here.

But what I don’t believe is that this contract (which only punishes B for violation), while techinically valid (as Jesse corrected me on), in any way “fixes” the “loophole.” B may be punished ad infinitum for his mistake, but C and D can still freely act on the information B mistakenly leaked. The only exception to this is if B had offered the same terms to C (and D) as A asked of B, which just transfers the case between A and B to B and C. In this case, B can be compensated (at least partially) for what he owes A by C or D.

The point is moot, however.

The “agreement” is so lop-sided in A’s favor that he’d have a hard time finding a willing B to enter the agreement in the first place.

I fail to see how the market would adopt such lop-sided arrangements.

Björn> “If this theory is not applicable in all situations, well that might be so, but what we are debating about are in those cases which it is applicable.”

When could it be applicable? There is always some level of vagueness, and the dictionary doesn’t help. I don’t think anyone denies that correlations between some manufactured objects will be very high — for example, long books (Rothbard talked about that example, I think in TEOL). But “ideas as property” proponents don’t say just “high” correlation, they also include entire paraphrasing of works (similarity/correlation). There is non-subjective way to set a correlation (similarity) index/limit (SPAM victims know this). For example, suppose a writer puts his ideas down on a paper and then the paper blows out the window. So the author writes the page again, but with some inevitable change, but essentially the same meaning. The author is hoping to get copy protection for the idea on the page, not the “exact” words. Widget makers want protection for the general pattern, the idea. One maker might make their “original widget” out of steel, but another might create the same functional thing in plastic. It is the idea that is hoped to be protected, not some “original steel physical model,” of which calling one particular implementation called “the original” is arbitrary (as any R&D; engineer knows).

What happens if one loses the “original widget?” Does the patent instantly expire? What if the original manuscript is destroyed in a flood? Does the copyright instantly expire? The inclusion of “original” is meaningless in this context. The “original” is in the nature of the idea/pattern, not a particular physical implementation. Incidentally, a widget manufacturer does not need an “original.” They only need instructions. The mythical “original” can vaporize with no consequence at all if the idea (abstraction) behind the physical implemetation is stored symbolically. The scoundrel who painstakingly copied the master’s original work will instantly transform into the hero when the master’s original gets obliterated by a lightning strike.

Abstractions do not have physical limitations, only their implementations do (that is actually the beauty of ideas). This is chasing a ghost. If one wishes to protect ideas, there are only a couple ways to do it: (1) keep it hidden, (2) positive right (political rent; force or power).

One can say “I believe there should be positive rights in ideas or protection of ideas.” That may be okay — but it is a fairness doctrine — not a libertarian property doctrine. There is a reason why no one can explain why ideas are property. Ideas don’t have the scarcity quality that physical objects do, and that is the beauty of wealth they offer. That is exactly why the claimed first discoverer of an idea wants the protection from replication — they know that ideas are abstractions that can be replicated ad infinitum given the physical resources. Naked ideas have no obvious characteristics in common with real and personal property, other than the fact that they can describe it. Calling ideas “property” is a category mistake.

Maybe the consternation this stirs up is because this whiffs of a property theory that does not satisfy a perceived social problem that those who seek a comprehensive theory wish it would.

Sasha, no one could care less how much labor or energy someone expended. The idea is ridiculous. If I ordered a pizza, I don’t care if it got to my door via magic carpet or Dorothy clicking her heels three times. The pizza boy doesn’t care how many calories he burned thinking about ovens, dough, tomatoes, and directions to my house. The deal was $20 for a pizza. The pizza boy doesn’t want their labor back if I don’t pay — they can’t get it back. The pizza boy wants $20. If I open the box and it is filled with dirt, the pizza boy didn’t steal my labor that I performed to get the $20. He stole my $20 — he never wanted “my labor,” regardless of whether or not he delivered pizza or dirt. The only items than can be stolen in the transaction are pizza and $20 (material things). That’s all. No one “buys labor” in any meaningful sense. They buy what it accomplishes. The notion of “buying labor” makes no sense because it adds exactly zero to any understanding of who owes what to whom.

GREG SAID: “No one “buys labor” in any meaningful sense.”

And what do you buy when you hire a customer service representative, cashier, merchandiser, and janitor for your hypothetical store? Do you buy people like a slave-owner, or you purchase their services. Of course it is the latter – you buy people’s labor services in labor market. It is much easier to realize this fact of life when you choose the right example. The example with pizza delivery has nothing to do with sale of labor… you are a little bit confused there…

Oh – if you pay for your pizza in advance, you voluntarily exchanged your property title. You don’t own the money – you own pizza. If pizza boy doesn’t deliver you YOUR pizza, he stole it from you – not the money. That is basic case of contract law. Ask Stephan if you don’t believe me.

————————————————–
GREG SAID: “Sasha, no one could care less how much labor or energy someone expended. The idea is ridiculous.”
————————————————-

That was my point exactly! That is why I said to Jesse that it doesn’t matter that so much of our energy is spent on something other than labor for which someone pays us (perfect machine does not exist, especially not in human form)… That does not change the fact that we own our labor – and that we exchange it for someone else’s money. If someone refuses to pay for our labor – it is the theft, because we exchanged our services for money (that money becomes our property).

Jordan,

you understood this Jesse’s point:
—-
If publisher B proves that C was the cause of those fines owned to the author A, through some action (such as theft) which already made C liable for damages: the fines would be secondary effects of a trespass committed by C against B.
—–

But that does not mean that person C will be allowed to continue with his trespassing (for which he was already held liable). For every future trespassing, he will continue to be liable for damages to B.

We could also say that the contract between A and B would be good enough to prove that any unauthorized copy belongs to the author – and that person D who buys an unauthorized copy from the violator C is in fact buying stolen merchandise (that under his contract with publisher B should have been forfeited to the author). Person D is also liable for economic loss to the author if he makes more of those copies from the copy he unlawfully acquired (because it belonged to the author). So not even side D would be safe in some “loophole”. But from our experience – it is important to stop violator C (or large “leak” that develops piracy).

I have written:

” Information is not a scarce resource but the original material object and property is (an original book, painting, invention etc). The right to make contracts about property is derived from the right of property. If information in itself, is a scarce resource or not, has then, nothing to do with it.
Well then, I own justly (in accordance with libertarian ethics) a scarce resource. Because I own it, I have all the rights to that property. I choose to sell all the rights to that property to somebody, except the right to copy it. What is, logically, wrong with that? I just can’t get it. How can anyone “prove” that there exists any flaw with this theory?”

Regarding a third party:

So the answer might be that someone needs the original owner’s right to the original material object and property (the title transferred) if this someone could be justified to have the right to copy it.

If this someone independently has transformed an idea to a material object and property? Well, then it is not a copy, is it?

What about an idea that is not realized into a material object and property? No one can “own” an idea, so anyone has a right to use it.

Björn Lundahl, Göteborg, Sweden

Sasha: “We could also say that the contract between A and B would be good enough to prove that any unauthorized copy belongs to the author – and that person D who buys an unauthorized copy from the violator C is in fact buying stolen merchandise (that under his contract with publisher B should have been forfeited to the author). Person D is also liable for economic loss to the author if he makes more of those copies from the copy he unlawfully acquired (because it belonged to the author). So not even side D would be safe in some ‘loophole’.”

No, you can’t assume that all unauthorized copies were stolen from the author, because those copies may never have belonged to a buyer (“violator C”) to begin with. If “violator C” owned the raw material when they were formed into a copy then yes, that copy would immediately become the author’s and any sale of it would be theft. However, if the raw materials belonged to D then D would own the resulting copy (regardless of whether C or D actually made the copy) and D is under no contract to give it to the author; the copy would remain D’s (though C would still be liable for it due to C’s contract).

Furthermore, if a copy belonging to the author (originally owned by C) were sold to D then C would be liable for any copies. D was not a thief; it was C that stole the copy by selling it. D would be compelled to give up the stolen copy, which belongs to the author, but would have a claim against C for theft (failing to deliver the copy that C sold).

—–

Björn: There is no such thing as a “right to copy.” Copying is a compound action, composed of observing an object (internalizing its pattern as an idea) and creating a copy (turning that idea into a physical representation). To prevent copying without claiming ownership over the idea itself you would have to either prevent observation (keep it a secret) or prevent everyone else from creating a copy (manipulating their own property based on the idea). The former becomes impractical when there are many authorized copies; the latter would be trespass.

Jesse,

I made a “lapsus calami”, but we basically agree. By “all unauthorized copies” I referred to those copies that are produced by violation of contract between C and B.

Since the contract between publisher B and consumer C will say that any unauthorized copies shall be forfeited to the author. So it really does not matter if C owns “raw material” which produced those copies. According to his voluntarily accepted contract, any copy will become the author’s property – and sale of these copies will equal to sale of stolen merchandise.

If on the other hand D comes into a unlawful possession of C’s book and D makes copies, he is not bound by contract, but he is liable for damages caused by his actions. He will loose those copies.

From an Ayn Rand novel: “You men of genius will keep on creating even if we don’t reward you for it; you can’t help it; so why should we compensate you?” Sounds like libertarians on IP!

Kinsella: “Could this be one reason many free market think tanks are supportive of IP despite a mounting case against it?”

You’re confusing correlation with causation and assuming that because big pharma supports Cato, Cato must have accommodated big pharma’s interests. It’s more likely that Cato held its position on IP first and big pharma decided to support them for it. Did no one notice that 3/4 of their support comes from individual donors and the next largest chunk from sales, not from corporations?

As for the “mounting case against” IP, I feel a lot of heat and hear a lot of thunder from the anti-IP crowd, but not much light.

Sasha: “So it really does not matter if C owns ‘raw material’ which produced those copies. According to his voluntarily accepted contract, any copy will become the author’s property – and sale of these copies will equal to sale of stolen merchandise.”

It certainly does matter. C cannot give any copies to the author unless C owns them. C can give any/all of C’s own property to the author, including any copies C may own, but not property owned by others. C’s labor in transforming raw materials into copies does not alter their ownership: only a contract with the owner of the materials can do that. C can agree to pay for any copies in the contract, and that payment will be binding on C no matter who makes the copies, but C cannot (legally) give away, under any circumstances, any copies owned by D. If the contract requires C to transfer all copies to the author, regardless of their present ownership, and D will not sell D’s copies to C, then C’s contract is impossible for C to fulfill, and C will then be labelled a thief for not fulfilling the contract — which has no bearing whatsoever on D or the titles to D’s copies. If D owned the raw materials then the copies also belong to D and are not stolen property.

Oh, I see RogerM has arrived; the debate period must be over. I’ll see you all later, on some other thread.

Will people and corporations create because they have an inner need to create (per the Ayn Rand quote) in a state of anarchy, and not because customers will actually have to pay for their products.

As always,ad hominem comments are appreciated.

Actually, I think it’s more correct to state that, when it comes to BigPharma, the need to create misery motivates. Take HIV as an example. Just today in the NYT (“All the lies deemed suitable for print”) there is a lovely piece about how AIDS drugs “unmask” other infections. Unbelievable. Further proof of needless suffering and the dumb-as-rocks reporter buys the theory that increased infections and death are a sign that the drugs work. War is peace and death is health. It is akin to my fist “unmasking” the latent black eye in the reporter’s face.

And no one should be surprised that BigPharma is a big IP fan. Evil does what evil is.

Jesse, you misunderstood what I meant by “it doesn’t matter if C owns ‘raw material’ which produced those copies.”

Even if C owns his “raw material” which he used to produce unauthorized copies – those copies will become the ownership of the author A based on C’s contract with the publisher B. By keeping these copies – C is committing a theft. Now, if D purchases these unauthorized copies – it will amount to the purchase of stolen goods. C will be liable for damages caused by all generated copies.

If D unlawfully obtained my book from C and than made copies of that book from his “raw material” – he will still be liable to C for all the he damages caused by creating the violation of his contract with publisher B – in the amount of these unauthorized copies and/or profits they generated.

There is no need to argue with this, since you basically agreed with all my points. If you don’t understand what I meant by the statement that the ownership of raw materials is not crucial here – just ask me.

Does anyone here actually believe that this type of contract would exist in a free-market:

A writes book. A contracts with publisher B to sell book. Any unauthorized copies that arise originally because of B’s mistake will incur a fine of $X from B to A.

That contract is so ludicrously in favor of A that there’s just no way I could see any sane publisher B entering into it (If the book’s print ever made it on the Internet? B would be bankrupt in no time flat).

Though technically said contract would be valid, and it would be valid for B to pass said contract to C (assuming it’s not forbidden in the contract with A), but if this contract wouldn’t arise in a free market, what’s the point in debating it any further?

It is impossible to argue that a voluntary, free-market contracts can be “so ludicrously in favor of one side” – although many socialists often say things like that. If both sides agree on some contract – that automatically implies that both sides are benefiting from that contract. If they don’t agree – that’s not my problem.

You misunderstood the purpose of voluntary contracts when it comes to terms of use. If publisher B would go bankrupt as the result of strict copyright protection – author A would not have any interest to formulate such contract. They would negotiate… So the market price formation would also be subject to complicated terms of use – and this is exactly the nightmare that central planners do not want. Go back to my first posting.

By the way, I think that a good book will find its widespread support from its fans – and that successful publisher will find a way to fight against piracy. Remember – private sector is much more efficient than government and there are many ways to track large violators.

Just let markets worry about that. Don’t try to be a “benevolent” creature that is busying itself with how free individuals will arrange their own contracts. They would do it better than government ever could – but that is not even the point here.

Isn’t this thread based on pure logic and the absence of government. Government and existing law is irrelevant to the conversation.

Kent Gatewood

“Isn’t this thread based on pure logic and the absence of government. Government and existing law is irrelevant to the conversation”.

Good comment!

Björn Lundahl

Jesse:”Oh, I see RogerM has arrived; the debate period must be over.”

Ahhh! That hurts!

Me:
That contract is so ludicrously in favor of A that there’s just no way I could see any sane publisher B entering into it

Sasha:

It is impossible to argue that a voluntary, free-market contracts can be “so ludicrously in favor of one side” – although many socialists often say things like that.

Why do you keep distorting my arguments into strawman arguments? Do you not wish to debate this any further? If so, just let me know.

Can you not see how out-of-context your reply is?

You:

Just let markets worry about that. Don’t try to be a “benevolent” creature that is busying itself with how free individuals will arrange their own contracts.

(Benevolent = Omniscent?)

Okay, fine. Won’t you please follow your own advice?

Björn> Regarding a third party: So the answer might be that someone needs the original owner’s right to the original material object and property (the title transferred) if this someone could be justified to have the right to copy it.

What “right” is needed to access “original owner’s original material object?” How can person A control what person C can look at, or think about, or “do” without an express agreement prohibiting C from doing so? Person C might inspect the millionth widget (which rolled off some unknown assembly line), that happened to blow onto their property from who-knows-where during a storm. Person C then makes replicas. Suppose all that happened was a drawing (symbolic representation) blew onto their property, not even an actual object, and then C makes the object represented in the drawing. If C looked over A’s shoulder and saw a cool drawing, or a nice poem, how could C be violating A’s property rights if they replicate the object suggested by the drawing or replicate the poem? If C never said they would not look over A’s shoulder, how is C bound by the wishes of A? Does A own the light between A’s drawing and the manner the light strikes C’s retina? How does C infringe upon A’s liberty?

Again, one does not even need an “original object” to make “replicas,” and the notion of “original” brushes hard against myth. There are often many editions of an idea that never get stamped “original” but would nonetheless be sufficient to go the main distance towards understanding the underlying idea. The “original” might be held symbolically, for example in a bill of materials and assembly instructions only. It is only the idea a would-be copier wants, not an original object. A “good” object manifesting an idea is a way to reverse engineer the idea, of course, but again, it is the idea that is wanted, not some object. It is the idea that allows replication.

Sasha> And what do you buy when you hire a customer service representative,…?

Um, oh, that’s hard… Umm, a happy state of mind for the customer so the customer will give me money? I’d be just as happy if electrodes or robots (automated phone systems) did the job. No one care’s about the amount of labor involved. I don’t care if the CSR spent 10 minutes or 1 second, I only care what a happy customer cost me compared to what they paid me. If the CSR doesn’t make the customer happy, I’ll fire them no matter how much they labored, because what I want is a happy customer, not a laborer.

Sasha> That does not change the fact that we own our labor…

Well I’m not buying it. LOL

Jordan,

You simply cannot say that even a hypothetical free-market contract is “so ludicrously in favor of one side.” If we even presume the existence of a free-market contract, we are automatically presuming that both sides benefited, or else contract would not be a possibility.

You can argue that contracts that protect copyright would not even exist, while I say that you have no evidence to support that claim. Instead, why wouldn’t let free individuals decide that? Like there is no universal price of a product, there wouldn’t be a set of universal terms of use when it comes to copyright. Why wouldn’t we let authors negotiate with their publishers and figure out their prices and terms? So I will follow my own advice – and I will advocate freedom, without the need to prove that market is not capable of delivering copyright protection (which is a wet-dream of every statist, who refers to this fantasy as to a “market failure”).

And by “benevolent” I sarcastically referred to those full-time do-gooders, who think they know what would be the best for all of us, before we even try it. Logical progression of their attitude is this statement: People, why should you bother and fail with your personal choices, when we already know what is best for you? Statism is founded on these hypothetical market “failures.”

I don’t care that you argue that copyright should not be protected by the state. If you argue that market is not capable of resolving this issue, you are supporting the quasi-arguments of those who say that we need the state – for exactly that purpose.

Greg, don’t make me laugh.

Your workers certainly DO CARE if they spent 10 hours or 1 second on their jobs – and they will be entitled for the work hours they provided, not for the amount of your “piece of mind” – which can change from second to second. It is exactly comprarable to a hamburger seller that sells you his product, regardless of your stomach’s “piece of mind”. If both sellers (your worker and your burger-provider) fail to deliver those services and goods that they were paid for, they will both be liable, without any difference.

Look at the fallacy of your logic… Even if you say that you are paying workers or other sellers for your “piece of mind”, they must provide it by employing their labor or some other products. You are paying for that labor – just like you pay for a hamburger.

There is no way out from this… It doesn’t matter if you buy these facts of life or not.

Greg:

Sasha> That does not change the fact that we own our labor…

Well I’m not buying it.

Good one, Greg!

GREG SAID: “Sasha, no one could care less how much labor or energy someone expended. The idea is ridiculous.” ————————————————-That was my point exactly! That is why I said to Jesse that it doesn’t matter that so much of our energy is spent on something other than labor for which someone pays us (perfect machine does not exist, especially not in human form)… That does not change the fact that we own our labor – and that we exchange it for someone else’s money. If someone refuses to pay for our labor – it is the theft, because we exchanged our services for money (that money becomes our property).

Sasha, labor is not property. No one “owns” it.For something to be owned, it must be the type of thing that is ownable. Not all things are ownable–where “thing” really is just a word that applies to any conceptual identification of aspects of reality. The concept “thing” can refer to poems, phenomenon, shapes, etc. You have to have a theory of what ontological types of things are ownable. The answer is: scarce (rivalrous) resources. The body is one of these. Labor is just one thing you do with your body. Ownership of your body is completely sufficient to allow you to use it–to labor with it–and to benefit from this use of your body (from the labor). It makes no sense to say you own the labor.

It is not necessary for homesteading theory either. Locke was off track there. It was an unnecessary step. They used overly-metaphorical, imprecise, flowery languate then. We have to clarify it.

I am still waiting for a proof that our entire physical body and its work is not “ownable”. Labor is a mean to your employer’s end – and it is scarce. Employers don’t pay you for your body’s presence, they pay you for the labor that you employ. I showed that the facts of physical reality state that we own our work – because it is a real physical property produced by our body (matter & energy). I also showed that we exchange labor for other people’s property – and we can be liable if we don’t deliver it. Also, I showed why Locke was correct – we acquire property because we mix unclaimed objects with our property (labor) – instead of claiming that “society” gave us that right by some “conflict resolving” arrangement (which implies that society can change it if there is a threat of conflict between rich and poor).

In fact, I have not seen a single argument against the labor-ownership theory of Locke, which Rothbard was smart to adopt when he explained the origin of property.

Sasha:

If we even presume the existence of a free-market contract, we are automatically presuming that both sides benefited, or else contract would not be a possibility.

Show me where I said otherwise, please.

You can argue that contracts that protect copyright would not even exist, while I say that you have no evidence to support that claim.

Neither of us have any evidence to support our claims. What’s your point? Next:

Instead, why wouldn’t let free individuals decide that? Like there is no universal price of a product, there wouldn’t be a set of universal terms of use when it comes to copyright. Why wouldn’t we let authors negotiate with their publishers and figure out their prices and terms? So I will follow my own advice – and I will advocate freedom, without the need to prove that market is not capable of delivering copyright protection (which is a wet-dream of every statist, who refers to this fantasy as to a “market failure”).

Nobody is claiming “market failure” here. My assertion that a free market would not provide IP is not a claim of “market failure,” much less a call for governement intervention.

I don’t care that you argue that copyright should not be protected by the state. If you argue that market is not capable of resolving this issue, you are supporting the quasi-arguments of those who say that we need the state – for exactly that purpose.

I’m not claiming that the market is not “capable of resolving this issue,” I’m claiming that there isn’t any issue for the market to resolve. There is nothing quasi-statist in my assertions.

I believe that a free market would contain contracts similar to non-disclosure-agreements (where applicable) and terms-of-use agreements to control access to information/ideas, which are non-ownable because they are non-property (non-rivalrous). Neither of these are IP (copyrights, patents). Neither of these are air-tight. They still are, under certain specific cases, susceptible to a third-party loophole (detailed ad nauseum above), but they still could be effective in many applications. But as to what the market would adopt–I can say what they could not adopt–contracts that violate non-contracted individuals’ private property–but I cannot say for sure what the market would adopt otherwise. It’s an educated guess.

JORDAN SIAD: “Show me where I said otherwise, please.”
————————————————-

Sure mate…

You said that the contract that protects copyright is “so ludicrously in favor of one side.” Well I said that that is a contradiction in terms. Voluntary free-markets contracts must be in favor of both sides (to a different degree) – or else, contract will not take place.

________________________________________________

JORDAN SAID: Neither of us have any evidence to support our claims. What’s your point?
________________________________________________

WRONG!!! My claim was that copyright was possible to formulate in a free market contract – and I supported my claim with analytical evidence. Your claim was (to paraphrase you): “OK, copyright is theoretically possible in free market contracts but they are unrealistic” – but that is baseless and even not so relevant for our discussion – because I said that terms of use would be negotiable and a part of a pricing process.

_________________________________________________

JORDAN SAID: “Nobody is claiming “market failure” here. My assertion that a free market would not provide IP is not a claim of “market failure,” much less a call for government intervention.
________________________________________________

Your assertion is wrong. And by saying that there would be no way to protect certain terms of use, you are (falsely) implying a market failure. Than you are supporting those who will sarcastically quote Ayn Rand: “You men of genius will keep on creating even if we don’t reward you for it; you can’t help it; so why should we compensate you?” That actually harms the libertarian side.

By the way, we closed your “third party loopholes”. Read more carefully. Copyright can hold in a free market setting, a lot better than under out nationalized “one-size-fits-all” politburo alternative.

Sasha baron cohen:

I am still waiting for a proof that our entire physical body and its work is not “ownable”.

Don’t you bear the burden of proof here? To assert something is ownable you need to show that it is the type of thing is. What is your theory about what kinds of things are ownable, Sashinator?

Labor is a mean to your employer’s end – and it is scarce.

Labor’s a scarce resource? Really? Do elaborate.

Employers don’t pay you for your body’s presence, they pay you for the labor that you employ.

And? Is the definition of scarce resource “what people will pay for”?

I showed that the facts of physical reality state that we own our work

When and where did it state this?

– because it is a real physical property produced by our body (matter & energy).

Yeah, wow, man, energy, wow man.

I also showed that we exchange labor for other people’s property – and we can be liable if we don’t deliver it.

Actually, you didn’t. On the former: it is true that “doing something” can be a condition of a title transfer of money payment from a payor; and that the payor might value your doing-the-something. So what? One can value the affection of his cat, but that does not mean anyone owns that affection.

Also, I showed why Locke was correct – we acquire property because we mix unclaimed objects with our property (labor) – instead of claiming that “society” gave us that right by some “conflict resolving” arrangement (which implies that society can change it if there is a threat of conflict between rich and poor).

Naaaahh. You didn’t. I have shown in detail many times–see my Against IP, and my recent How We Come To Own Ourselves.

In fact, I have not seen a single argument against the labor-ownership theory of Locke,

Oh, then see above 🙂

STEPHAN: “Don’t you bear the burden of proof here?”

SASHA: I explained why self-ownership implies labor-ownership (because human action takes place in physical reality) – but I also explained how we demonstrate that we own our labor (by exchanging our labor for property – instead of selling our body parts to employers as your alternative suggests).

On the other hand, you were incapable of explaining why else would the first use provide you with a “better claim”, and who decided and when that this is “better.” You strongest argument so far was “NAAAAAH.” That is really sad.

———-

STEPHAN: “To assert something is ownable you need to show that it is the type of thing is. What is your theory about what kinds of things are ownable?”

SASHA: Every physical thing in this world that can be employed as a mean to an end is “ownable”. Work qualifies as such.

——–

STEPHAN: “Labor’s a scarce resource? Really? Do elaborate”

SASHA: Sure. The demand for labor exceeds its supply when price is zero. So it is scarce. And it is a resource, since it represents a mean by which the employer pursues some end. Labor has value for an employer — a value derived from that of the goal — because he must regard its use as necessary in order to effectively achieve the goal. Employer does not need just the presence of your body or body’s parts – he needs your labor.

——
STEPHAN: “And? Is the definition of scarce resource “what people will pay for”?”

SASHA: No, don’t be silly. You have the definition above. The fact that employers don’t pay for your body’s presence – but for your labor – clearly demonstrates that labor is their valued mean. Because they value labor as a mean to their valued goal – and labor is scarce, they will pay for it. Economics 101.

—————–

STEPHAN: “When and where did it state this?”

SASHA: I used figurative speech. If you own a physical body, you own all of its physical properties, including work.

———

STEPHAN: “Yeah, wow, man, energy, wow man.”

SASHA: True. If you own your physical body, you own everything it consists of. You don’t like to discuss these physical matters because they don’t fit into your idea of property acquisition. But you cannot change reality by ignoring it.

——————-

STEPHAN: “it is true that “doing something” can be a condition of a title transfer of money payment from a payor; and that the payor might value your doing-the-something. So what? One can value the affection of his cat, but that does not mean anyone owns that affection.”

SASHA: Affection of one’s cat is not a mean to some end for your employer. Your labor is – and by exchanging it for someone else’s property you exercise that ownership (which is directly derived from the fact that you own your entire physical body).

By the way, labor is a “condition of a title transfer” – just like a delivery of a pizza is a “condition of a title transfer”. You failed to show that labor is not a property.

———–

STEPHAN: I have shown in detail many times–see my Against IP, and my recent How We Come To Own Ourselves.

SASHA: Naaaaaahh. By saying that we come to own our property by “first use” – you confirm Locke’s theory. Because how can you have a “use” without labor/work??? So you only confirm that property acquisition is impossible without applying OUR labor (our property) to unclaimed object.

You say: to heck with physics, we don’t own our labor. The fact that you cannot acquire property without some form of labor is coincidental to you. You say: we become owners by first use, because we have a “better claim” than someone else. But like I said: you were incapable of explaining why else would the first use provide you with a “better claim”, and who decided and when that this is “better.”

———————
(in his article “How We Come To Own Ourselves”) STEPHAN SAID: “…one is not really the “first user” of one’s body in the same sense as one is the first user of a previously unowned thing that one appropriates… If “first use” is not the ultimate test for the “objective link” in the case of body ownership, what is? It is the unique relationship between a person and “his” body — his direct and immediate control over the body.”

In other words, self-ownership can only exist out of action/work, which implies will. It is the action/work to secure one’s own existence that begets one’s self-ownership. Work (energy transfer according to physics) begets ownership, based on your own statements.

In summary: Stephan is trying to divert the discussion from his copyright fiasco. Not a problem…

Self-ownership must be accepted a priori, because it is based on the fact that humans act purposefully. Unlike animals, we have the ability to consciously manage our body (to produce actions). Self-ownership simply means that nobody else’s mind has the ability to produce actions/work of our body. Stephan proved that these purposeful actions are necessary pre-requisites of self-ownership (simple use of one’s body is not enough, since animals use their body too).

This proves that the original property acquisition (self-ownership) is based on one’s mind’s exclusive control of one’s “ability to work” – which is the basic definition of energy (check, if you don’t believe it). So the action-axiom on which the entire praxeology is based directly implies that we own our labor (transfer of our energy)

By understanding the origin of our first property (conscious control over “ability to act/work” = energy) – we can logically conclude how other property is acquired. Every single case of property acquisition involves mix of our body’s work with some unclaimed object. Since work is defined as a transfer of energy, it means that we transfer our existing property on that object. This property acquisition is based on transfer of our real property, instead on some imaginary, fictitious “decision” of “society.”

My theory is based on facts of our physical reality when I analyze the properties of physical objects – as well as praxeology when it comes to logical implications of human action. It is the science-proper (true to the Latin origin of the word: scientia = correct knowledge). It is very much different from “scientism” which tries to treat human action as a mathematical phenomenon. Equally wrong is Stephan’s attempt to deny physical characteristics of natural object, when he tries to include them in a praxeological hypothesis. A physicist cannot deny the axiom of human action and its derivatives – just like a praxeologist cannot deny physical reality in which human action takes place.

Sasha:

You said that the contract that protects copyright is “so ludicrously in favor of one side.” Well I said that that is a contradiction in terms. Voluntary free-markets contracts must be in favor of both sides (to a different degree) – or else, contract will not take place.

No I didn’t. I said your idea of how a contract could protect copyright was ridiculous. I didn’t say that if somebody did enter into such an agreement, that that would somehow be invalid. I have a point here. People are rational.

Sasha:

WRONG!!! My claim was that copyright was possible to formulate in a free market contract – and I supported my claim with analytical evidence. Your claim was (to paraphrase you): “OK, copyright is theoretically possible in free market contracts but they are unrealistic” – but that is baseless and even not so relevant for our discussion – because I said that terms of use would be negotiable and a part of a pricing process.

WRONG (yet again)!!! I never claimed that copyright was possible. I admitted that a contract with unlimited damages to a contracting party is technically valid.

Sasha:

Your assertion is wrong. And by saying that there would be no way to protect certain terms of use, you are (falsely) implying a market failure. Than you are supporting those who will sarcastically quote Ayn Rand: “You men of genius will keep on creating even if we don’t reward you for it; you can’t help it; so why should we compensate you?” That actually harms the libertarian side.

This is not market failure! In a free society, we wouldn’t have social security either. Is that a market failure as well?

By the way, we closed your “third party loopholes”. Read more carefully. Copyright can hold in a free market setting, a lot better than under out nationalized “one-size-fits-all” politburo alternative.

No, we didn’t close third-party loopholes. The third party is not part of the contract. Read again.

And you can punish B financially until the cows come home for his leak per his contract with A, but you cannot ever legally punish C if he never entered a contract with A or B and used his own private property to produce a copy of the idea leaked by B. That idea can be sold to D, E, or F legally.

Therefore, the loophole exists. But this isn’t market failure. It would only seem to be a market failure to a person who clings to the notion that we must have IP.

Jordan,

By saying that some possible contract “so ludicrously in favor of one side” – you committed the logical fallacy. Be a man, admit it, and move on.

By admitting that copyright protection in contracts is technically valid – you basically admitted that copyright is possible if two sides wanted it. That is all I tried to say. I didn’t argue that everyone would agree on those terms, but you didn’t prove that no one would. Move on.

You didn’t prove any third party loophole. By collaborating in unauthorized copying with person C – person B causes violation of his contract and he is liable to A in the amount of all unauthorized copies that resulted. He will thing again before he “leaks” something and creates such economic taking from the author A. So there is no loophole – as long as there is a liable side. Just face this fact and move on.

Sasha,

I did not commit a logical fallacy. You misunderstood me.

I never admitted that “copyright protection in contracts is technically valid.” Saying so does not make it so. You again misunderstood me.

Perhaps the whole “loophole” term is misleading to you. I’m not trying to argue that B would have a “loophole” to break his contract, just that you cannot contain the leak once it occurs. You cannot punish C or D or n. You can only punish B repeatedly, which doesn’t create copyright. If you agree, be a man, admit it, and move on.

Jordan,

YOU SAID: “technically said contract would be valid, and it would be valid for B to pass said contract to C (assuming it’s not forbidden in the contract with A”

End of discussion. Such contract is technically valid, and I didn’t misinterpret you. Also, it would be insane to argue in advance that some contract is bad for publishers – they can decide for themselves.

As far as your “loophole” goes – the term is misleading you. There is no loophole in our case. If person B causes “leak” which results in my serious economic loss – only person B is liable for any contract violations. I don’t want to punish C or D, or n, since they are not the a-holes (excuse my French) who broke my contract. In other words, person B will be fine, as long as he/she doesn’t act as a contract violator. If someone else (C) acts against the will of the person B – and causes liability by stealing information – person B is completely safe and can hold C liable for any damages that were caused to me. So I will admit that you totally misunderstood what “loophole” means and I’ll move on.

Sasha,

If someone else (C) acts against the will of the person B – and causes liability by stealing information – person B is completely safe and can hold C liable for any damages that were caused to me.

This only applies if B and C have a contract similar to A and B. If no contract, then no liability can be sought by B because C broke B’s “will.”

For example: I just might make a bet with somebody that the Mariners will win the World Series next year. If I find someone who will take my bet, and I lose, I’ll hold the M’s liable for breaking my will and causing me liablity.

Without a contract, this is the same situation, since you cannot “steal” information–it is non-ownable.

Jordan,

You totally misunderstood what is the “theft” in our case (when C acts against the will of B). It is not “information theft” that occurs here – I referred the actual trespass against my property that B uses. Information does not hang out in the air – it is stored somewhere (either in our brain, or on a physical medium). If C obtains information from B by trespassing, he will be liable for any resulting damage (amounting to all produced copies and/or profits they yielded). You can’t argue with that. There is no shame if you just stop repeating the same refuted objections.

This is my last post on this thread.

Sasha (two posts above): “…causes liability by stealing information…”

Sasha (last post): “It is not “information theft” that occurs here”

Gee, wonder why I misunderstood.

I guess we’re pretty much in agreement on the whole third-party business. Goodbye.

You misunderstood because you assumed that according to my views information just hangs out in the air. When I said “stealing information” – I clearly referred to a trespasssing against the property that contains information. Is it better now?

I am glad we finally agree on this whole issue. Nice talking to you.

Sasha> If C obtains information from B by trespassing, he will be liable for any resulting damage (amounting to all produced copies and/or profits they yielded).

If the copies are already out the door to D, E, F, …Inf, then only ill-defined profits could be recovered. D, E, F, …Inf, can then make countless copies while violating no contract. C will simply be bankrupted.

BTW, I think Stephan is trolling you with a new IP thread.

JimB, I hardly have any idea of what you’re driving at. I think it may somehow be related to what a bedrock moral priciple is and how it is recognized. Who knows? Your post was:

Better / worse, cause / effect implies natural moral law. (Are you a libertarian? If so I need say nothing else but to point out that your position is self-contradictory).

Immateriality has no bearing on this discussion (“all in the mind”). Natural laws are immaterial and you believe in them.

Survival requires mental submission. After all, you believe that engineering principles will be valid in the future although there is no logical necessity they must. (I note that the laws themselves are mystical, magical, unexplainable, immaterial).

When you say Survival requires mental submission you’re making the same upside-down mistake you already made. Human beings make nature submit, that is what makes them different. Stunningly, you don’t even understand this on your own terms:

26Then God said, “Let us make man in our image, after our likeness; and let them have dominion over the fish of the sea, and over the birds of the air, and over the cattle, and over all the earth, and over every creeping thing that creeps upon the earth.” 27So God created man in his own image, in the image of God he created him; male and female he created them. 28And God blessed them, and God said to them, “Be fruitful and multiply, and fill the earth and subdue it; and have dominion over the fish of the sea and over the birds of the air and over every living thing that moves upon the earth.” 29And God said, “Behold, I have given you every plant yielding seed which is upon the face of all the earth, and every tree with seed in its fruit; you shall have them for food. 30And to every beast of the earth, and to every bird of the air, and to everything that creeps on the earth, everything that has the breath of life, I have given every green plant for food.” And it was so.

Do understand what it means to “have dominion over?” It is not “submission.” Also, I think you probably have a crude understanding of what it means when it is said something is a “physical law.”

oops, wrong thread

Not again!

GREG SAID:
———————
If the copies are already out the door to D, E, F, …Inf, then only ill-defined profits could be recovered. D, E, F, …Inf, can then make countless copies while violating no contract. C will simply be bankrupted.
——————–

As it should be… if C intentionally violated our contract. Harsh consequences like those will be a powerful deterrent against copyright violation.

By the way, Stephan’s new thread only proves my point (I doubt he realized it):
– Not everyone in the free market wants our current one-size-fits-all copyright “protection”. Stossel did a report on 20/20 about Lime Wire and how it helps promoting new music and consequent sales of CDs.

That’s why I said: leave it to free individuals! Let them formulate their contracts any way they want to. I explained how free market could provide protection of copyright, but it would be left to individuals to negotiate their contracts. Some people would rather pay lower price than have the unrestricted copyright. That would make pricing more complex and that’s why econometricians and central planers would hate such liberty.

sr> I explained how free market could provide protection of copyright,…

In your dreams.

That’s the best you could do? Pathetic.

Why don’t you stop being someone else’s cheerleader? It’s more fun when you think of a coherent argument – try it.

…But I’m afraid you are out of luck. Markets can provide a lot of things, including certain terms of product use.

Copyright

1/ If person A sells his property to another person under the condition that the buyer has no right to copy it and this property has a design, construction etc which is very usual, the buyer won’t violate the contract even if he would make another sample of the same product (property).

2/ Alternatively, if person B sells his property to another person under the condition that the buyer has no right to copy it and this property has a design, construction etc which is unique, the buyer will violate the contract if he would make another sample of the same product (property).

If person B didn’t, originally, own the property and all the rights to it (including the right to copy it), he couldn’t justifiably make mentioned contract. But in this example he did, actually, completely own the property.

As person B completely owns the property and did not either transfer the right to copy it to anyone, a third party does not have, because of this, any right to copy it.

Björn Lundahl
Göteborg, Sweden

Björn, as far as #1 goes, it doesn’t matter how “usual or unusual” it is, because the red flags go off for subjectively rating what is “usual.” If someone agrees not to copy, that’s it — they don’t copy. Naturally one has to describe what “exactly” it is that is not to be copied. “Exactly” is in quotes because of the practical difficulty in accomplishing that descriptive task in so many cases.

The same “exact description” problem exists in #2’s “unique” language. I can’t understand paragraph 2 of #2, and there is no such thing as “a right to copy.” All that can exist is a prohibition of an agreeing party in exercising their power to copy the whatever is being described.

Regarding paragraph 3 of #2, the third party (“C”) can make whatever they want with their own property. C’s property “looking like” A’s or B’s property is completely irrelevent by itself.

I don’t mean to imply that the “exact description” problem prevents “reasonable persons” from agreeing on what constitutes a copy. People can and often do agree — but I want to say the problem always exists to some measure and can at times be significant.

Copying is a power — something people are capable of doing. It is not a right. Restricting a party from exercising their power (ability) to copy an idea requires a prohibition agreement (an NDA), since ideas are not property. People are generally at liberty (freedom in the social context) to do whatever they want with their property. But to act on reforming their property according to some idea/pattern requires ability — with ability meaning power. That’s why what is sought here is a prohibition of the use of power. (“Positive rights” are simply power deceivingly called rights. They are not rights at all. They are sometimes called privileges and licenses.).

SR> Markets can provide a lot of things, including certain terms of product use.

Shocking! It’s a good thing you’re here. I mean, who knew?

Greg said: “Shocking! It’s a good thing you’re here. I mean, who knew?”

Well, I knew. But you obviously did not, since you tried to imply that markets (free individuals) would not be capable of resolving any demand for copyright protection. That was the root of disagreement between Stephan and I. How nice of you for paying attention on topic before you decided to share your opinion.