Monday, January 6, 2014

In Review: "A Libertarian Critique of Intellectual Property"

Butler Shaffer's A Libertarian Critique of Intellectual Property is a tiny booklet. It measures only 4" x 6" in size and is only 58 pages long--this includes the index and a 9 page introduction by David Gordon. Yet, I found many observations throughout the book relative to his anti-IP position  that are worthy of comment.

Shaffer begins the booklet by telling us that the libertarian perspective is
premised upon respect for private property and the rejection of coercion
I have no problem with this characterization by Shaffer.

But then Shaffer quickly takes an odd turn. He writes:
 Are the origins of IP interests to be found in the informal process by which men and women accord to each other a respect for the inviolability of their lives- along with claims to external resources (e.g. land, food, water, etc.). Or are they to be established by formally enacted rules by political systems? In a world grounded in institutional structuring, it is often difficult to find people willing to consider the possibility that property interests could derive from any source other than an acknowledged authority[...] I do raise the question of whether, from a libertarian viewpoint, any philosophical defensible ownership claims could be created by political systems? [...] The question which I focus is this: in the same way that respect for individual property claims can arise informally among men and women, is there evidence for such claims to IP being so recognized? 
Thus, it appears that Shaffer thinks he has struck his first blow against IP. But what difference should it make what the origins of IP are? The question that should be asked is "Can IP informally arise among men and women?"

Certainly, if person A has some information, let us call it a secret, and says to person B, "I will tell you this as long as you don't tell anyone else," and person B accepts the offer, then an informal IP agreement has been created. If I live in a private property society and  have a formula that provides clues as to how a blog post should be written so that it is linked by the Drudge Report, and I agree to tell you the formula in exchange for  $10,000 and your agreement that you will not reveal the formula to anyone else, I have entered into an informal IP contract. Note, I am not here discussing the ease or difficulty with which such a contract can be enforced, but merely whether it can be created informally, outside the political system. It should be clear that such contracts can be created. Thus, government IP laws have nothing to do with the concept of IP itself, anymore than government police are at the core of physical private property. Does Shaffer want to argue that because physical private property is largely protected by government police and government laws that the concept of private physical property is flawed?

Shaffer goes on to write:
[...] when the state-with its monopolistic powers-acts for the benefit of the few, all are legally bound by the rules whether they agree with them or not. If copyrights, patents or trademark protections are not recognized among free people-unless specifically contracted for between two parties-by what reasoning can the state create and enforce such interest upon persons who have not agreed to be so bound? 
This is correct, but it is certainly not an argument against IP, but rather government involvement in IP.

He then writes, seeming to suggest another quandary for libertarian supporters of IP:
Nor can the inclusion of a copyright notice in a book be defended, under contract principles, as such provides no evidence that the buyer has agreed to respect the presumed property claim prior to his purchase.    
To which, I reply, so what? What does this have to do with IP? It has to do with government involvement in IP. It is not difficult to see how a book could be sold in a private property society while maintaining the sanctity of contract. If company A publishes books, it can certainly contract with book retailers in a manner in which retailers agree not sell the publishers' books unless the retailers ensure that book buyers agree not to reproduce the books in any fashion. This could be accomplished by the retailer at the checkout counter where a book buyer would be required to simply sign a paper agreeing not to reproduce a given book, to be allowed to purchase the book.

Shaffer then attempts to justify his anti-IP position by referencing common law, where he seems to find a copyright law more amenable to his anti-IP position:
At the early common law-and until 1977 in America-a limited copyright principle existed . A person who had written a book or poem, placed it in her desk drawer, and it was later removed by another and published without her consent, maintained a copyright to her work. If however, the author had the work published-which meant, as  the word implies, made "public"-she lost such copyright, the act of publication being treated as a abandonment of control over her claim of ownership.
 But is common law a contract between two consenting parties, or simply another form of intrusion by outsiders on contracts? What does this have to do with IP in a libertarian society? I would argue, nothing.

Shaffer then makes a very odd utilitarian justification for his anti-IP position:
The notion that the anticipation of monopolistic rewards such as patents and copyrights is essential to the creative process, is negated by much of history. I am unaware of such copyrights having been issued to writers such as Aeschlyus, Homer, Shakespeare, Dante or Milton; or composers such as Beethoven, Bach, Mozart, Wagner or Tchaikovsky.  
It is noteworthy that Shaffer only cites creative geniuses, who, indeed, may not have been motivated by money and required little in terms of capital to produce their creations.

Ludwig von Mises in Socialism (p.168) reminds us:
The great creative genius who perpetuates himself in immortal works and deeds does not when working distinguish the pain from the pleasure. For such men creation is at once the greatest joy and the bitterest torment, an inner necessity. What they create has no value to them as product: they create for the sake of creation not the results.
Is Shaffer proposing, in opposition to Mises, that geniuses are not a special category and  that the attitudes of most people towards money are the same as geniuses?

Further, what about research projects that take years and significant amounts of capital to produce a product? Is Shaffer suggesting that these projects would go on, if competitors could immediately reproduce the products, without the outlay in research capital, by just copying the fruits of another's labor and spent capital? Naming geniuses is a very weak reed from which to launch a utilitarian based attack on IP.

On another point re this paragraph, Shaffer fails to make a crucial distinction between copyrights and patents. He states that they are both monopolistic grants. This is not the case. As Murray Rothbard wrote in Man, Economy and State, there are important differences between copyright and patent, whereby even at the government enforcement level copyright is not a monopolistic grant:
Patents[...] are grants of exclusively monopoly privilege by the State and are invasive of property rights on the market[...]
The crucial difference is that copyright is a logical attribute of property right on the free market, while patent is a monopoly invasion of that right. 
Shaffer, then goes on to make another curious utilitarian argument against IP. He writes:
[T]he cross-fertilization of ideas, techniques and other influences, among communities of artists, have  greatly enhanced the creative process. On the other hand when driven by the reward of patents, scientists and inventors are known to maintain secrecy in their laboratories and research lest a competitor gain insights that might advance their work.
But a secret would only continue until a research project has produced results and IP protection is enforce. IP would free a researcher to be less secretive of his product. Further, Shaffer implies that with IP  cross-fertilization of ideas would stop because of IP protection. The logic does not appear to follow this claim. If much greater advances in a given area are the result of  the cross-fertilization of ideas, why wouldn't  cross-fertilization occur? If I can make $10,000 by working alone, but $1 million by working in collaboration, why wouldn't I collaborate, even if IP protection does not require me to so so? Indeed, even in the academic arena, there are many collaborative scientific papers that are published on a daily basis, despite current copyright law.

Shaffer also hoists one of my favorite bizarre attacks on IP. He tells us:
Undoubtedly, the greatest invention in human history was language.[...]I suspect that, had any such [IP] restraints been available and enforced, we would never have realized the richness and vibrancy of the self-generated language we now enjoy.
This is simply absurd. Words are used to communicate. If I invent a word to describe water, say the word, spiggle, and attempt to charge people who want to use it, no one is going to use the word. Someone in the community will come up with another word for water and allow free use of it--to advance communication. I would like to see Shaffer copyright one word, any word, and then try to sell the use of the word.

Note: The only area where it would make sense to actively seek  IP protection of a word is when it identifies a specific product, e.g. Coca Cola (which in this case would be trademark IP), so that when we order this product we have a name for it that others making other products can't use. It this case, it would eliminate confusion. But the copyright of everyday words for common usage would never happen.

Shaffer then goes on to state a problem with government granting IP protection, but, again, this has nothing to do with IP in a private property society, though he fails to make clear the difference.
There are many other costs associated with IP that rarely get the attention in cost benefit analysis of the topic. One has to do with the fact that the patenting process, as with government regulation generally, is an expensive and time consuming task.
Yes, this is a problem with GOVERNMENT granted IP protection, but it has nothing to do with contracts between individuals in a private property society.

Shaffer concludes:
The pragmatic arguments offered herein are intended to reinforce my case against IP. The essence of my views is found in the title of this article, upon which I rest my case. Can one, consistent with a libertarian philosophy, respect any "property" interest that is both created and enforced by the state, a system defined by its monopoly on the use  of violence? I regard the proposition as indefensible as would be the question of a libertarian defense of war.
Here once again, we see Shaffer jumbling government created IP law with IP that would develop in a private property society and wrongly dismissing the entire IP concept. What he has done, in parts of his booklet, is make a case against government involvement in IP, a view I concur with. However, he has made no solid case against private individual IP contracts and thus his booklet must be deemed a failure in making a libertarian case against IP.

63 comments:

  1. It's an odd form of argumentation to discuss the physical dimensions of the book and the page count. By the way, what is the physical size and page count of your magnum opus on IP for which we continue to wait ?

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    1. You think describing the physical dimensions of the book is my argument?

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    2. I thought your description of his book was a positive for Shaffer myself. Better brief than 1500 pages that leave you scratching your head in the same way....

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    3. No. I don't think it is relevant at all as it is not in the least bit substantive. But, given that you brought it up, you appear to think that implying it is a "small book" means that it cannot have any substance and is to be dismissed. Don't get me wrong - I don't think you understand IP at all on any level - I just wanted to point out the lengths you will go to try to reduce your opponents. Kind of like telling a person in a substantive debate that "you want to destroy them" as you did with Kinsella.

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    4. "I just wanted to point out the lengths you will go to try to reduce your opponents. Kind of like telling a person in a substantive debate that "you want to destroy them" as you did with Kinsella."

      You realize that was in response to Kinsella calling Wenzel "a worm", correct?

      I would be very careful using Kinsella as an example of how to conduct a civilized debate as I've been on the receiving end of his ad hominem when the debate points started getting difficult for him.

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  2. Most anti-IPers conflate the concept of IP with governments role in it(currently) because they fail to consider that the free market would present solutions over time to difficult issues surrounding IP in general.

    Nice write up Wenzel.

    I'd only like to add that in perusing Butler's list of creative geniuses the first thought that immediately came to mind without further research is that Shakespeare was able to make a living out of the natural respect for his IP(his writing) at the time(no gov't needed) as well as Mozart having several patrons that respected his IP. The idea that they weren't thinking about money at the time seems a bit of a stretch, but more importantly they were paid for IP as an implicit acknowledgement of such.

    IP being a lightning rod topic for discussion, I look forward to reading other comments on the above.

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    1. I agree that there is a difference between "IP" as it stands today with regards to Copyright/Patent laws versus adjudication via contracts and property agreements in a Stateless society. But, the entire discussion surrounding IP does beg the question of what is or can be "property" in the normative sense and why is it needed at all in the first place? So, if one wants to think about IP, there are presuppositions that are important and need to be recognized.

      The genesis/history of "IP" dates back to things like the Statute of Anne and the Statue of Monopolies which granted monopoly privilege to particular individuals of a certain industry or trade. So, yes the concept of IP is important to the debate since things like copyrights, patents, etc are by definition normative monopoly privileges granted to person or persons by a territorial monopolist (The State).

      I'd like to point out that Shakespeare did not make much money by writing/selling his works but mostly through his production company which produced the live plays. This is what made Shakespeare rich and wealthy and not necessarily the his "works" per se. Mozart (I believe) was directly financed to compose and produce works for the aristocracy but paid directly for his live performances. In both cases, we see that these artists constantly had to churn out more and more material and not just rely on a monopoly privilege granted through copyright. So, the lack of any type of IP protection (contractual or otherwise) encourages more and more innovation. And, if you produce a home run of a hit (play or otherwise), you’re going to get a lot of attention from investors or consumers to fund your FUTURE works.

      As I imagine, artists, authors, musicians, etc would still be able (today) to produce works for those who would seek their services – especially to perform concerts, etc. That (after all) is the way most musical artists make a lot of money especially if they own their own production company and go on various concert tours. Things like crowd-funding, sponsorship, and ad revenue from things like YouTube make it is fairly easy to see how the absence of IP would not (and is not) a hindrance to making money as an artist.

      In the modern sense, we see similarities in the food industry where top chefs are sought out for their culinary skills and paid based for the service, labor, consulting. Two of my favorite TV (Reality) shows are Gordon Ramsay's "Kitchen Nightmares" and Robert Irvine's "Restaurant Impossible." Both shows involve brilliant Chefs and entrepreneurs (Ramsay and Irvine) being brought in as Consultants to turn around some type of failing eating establishment. In doing this, they always provide the restaurants with their own personal recipes and yet I do not see any whiff of "protectionism" or erecting onerous contractual agreements of how these restaurants can use the recipes. They WANT these restaurants to say, “hey we sell a Bangers and Mash dish based on Ramsay's recipe.” This enhances the Chef's own brand, reputation, and bona fides.

      So, the constant thread I want to highlight is that writers/authors/musicians/chef’s, etc are compensated on the model “Expertise of X as a Service.” Here are some examples. For teachers and professors it is “education as a service.” For authors, it is “knowledge/advice/history as a service.” For musicians/composers/comedians it is “Music & Entertainment as a Service.” For someone like myself, a software developer, I am compensated for my ability to provide “Software as a service”.

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    2. So how does this apply to the researcher who has to spend years and someone's capital to create a product that could be instantly copied?

      Are you making a special anti_IP case for geniuses?

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    3. Thanks for the question which I do appreciate is a good one. Let me try and respond since your question is a bit vague. I'm not sure if you're questions pertains to something like pharmaceuticals or something else. So, I'll just use the example of the industry that I'm in - software and technology - which is chalk full of researchers, capitalists, and geniuses like the scenario you’ve posed.

      The amount of time it takes to procure, create, invent, or produce something as well as how easily said thing can be replicated, copied, or emulated are obviously two important factors in the decision making/actions of any creator or inventor. As a software developer myself working in a highly competitive software marketplace deal with this all of the time and I've pondered the question of whether I should sell my software services for a wage rate or go out on my own and work for myself as an independent consultant and start my own company. There are pros and cons to both paths. If something is easily copied, emulated, or mimicked, that is going to impact how a company or individual sole proprietor does protect his “secret sauce.” There are all kinds of ways that developers protect their software or issue subscriptions with a certain type of license/key that expire or must be validated in order to properly use them.

      But anyway, I have a concrete example that goes directly to your question and I hope answers it succinctly.

      Let’s take an example of JavaScript which is probably the best example that I can think of to answer your query. JavaScript is code that runs on the user’s machine and can be viewed by anyone. To see what I’m talking about, right click your browser you are currently using and click “View Source” and you will undoubtedly see what I’m talking about. There are thousands if not millions of developers and researchers out there writing JavaScript code for companies (and making lots of money doing this). Anyone can copy JavaScript code, modify it, and use it for their own purposes. John Resig is a JavaScript developer and “genius” in my book for probably the most influential JavaScript code (or “Library” as it is better known) called “JQuery.” He is the inventor/founder of the JQuery library which is probably running on almost all modern websites today. This is a free library that costs nothing to download, run, install (as are virtually all JavaScript libraries) and yet is extremely valuable in its utility for running software.

      John Resig now works for Khan Academy as an application developer and is making who knows what kind of money. The thing is that with John Resig’s creation of JQuery, he is a rock star in the software industry and yet I have no idea how long it took for him to create the JQuery library. And yet, I’m sure he can write his own ticket to work for anyone (Google, Facebook, Yahoo) or do whatever he wants based on this skillset, CV, knowledge, programming ability to continue to provide value (“software as a service”) and not rely on any type of IP protection, royalties, or reoccurring monies from JQuery library.

      There are many other John Resig’s out there (brilliant/genius researchers, inventors, technologists) who fit this same criteria (Anders Hejlsberg is another that comes to mind) who earn money based on the value of their specific “service” and not based on any royalties from their so-called IP.

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    4. Andy,

      I think one important point you are not addressing is that the chefs you mention, teachers, and yourself are offering "services"(which obviously an important distinction for you as you don't want to connotate the notion that knowledge is property, which I disagree with and is one of the fundamental areas of disagreement in the IP debate in general) in a VOLUNTARY manner, such as information/intellectual sharing.

      If you have the knowledge and someone is paying you for it for consultation and you offer up a recipe in their service to make their restaurant better then you have willingly sold some of your "property" in doing so.

      The same goes for you on a software level. More specifically though, if you work for a company as a software developer and they've invested time & money into you and you come up with a custom software solution for them then you've both fulfilled the terms of your agreement(contract) and your work(and IP) now becomes theirs.

      In most cases, companies contracting with you would have some type of agreement with you in advance that any software developments you create for them would be theirs exclusively and bind you from sharing with others.

      If you told an employer or customer for whom you did software work for that any solution they pay you for would then become "communal" or "public" property I highly doubt most would pay you to start, regardless of whether you think what you do is a "service" that isn't potentially property.

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    5. Thank you for the response Nick.

      You are correct that stating the “product/good” that is being sold (to an employer or a consumer) IS the "service" procured the individual - the chef, teacher, myself or the Mozart/Shakespeare. This type of "good" that is offered differs from say an apple, car, tv, or microwave. So, I do think there is a difference between a service-based good versus a physical/tangible good. I won’t dive into this whole discussion/tangent since it’s been covered at length before.

      If I offer my labor services to someone (as a developer) I've simply exchanged just that - my labor or expertise in exchange for something else (whether I'm remunerated for it or not). Now, we might have some type of contractual agreement we agree to abide by which is completely fine. But, this has no bearing on any other parties (again a topic I won't elaborate on at this time).

      Now, when I work for a company as say a W2 employee (not a 1099 contractor), I'm using the company's capital (computers, hardware, facilities, energy, etc) to produce/procure whatever they want. Any competent company is going to take care of the source code I maintain/procure for them and ask me for documentation and the whole bit. They want to make sure all the work I've done is backed up and secure in case I leave or even say if I get hit by a beer truck. I may or may not agree to sign a non-disclosure agreement, non-compete clause, etc while I am employed and this is all fine as well. But, again if I break or violate any of the contractual agreements I vowed to uphold, I am the only person that is liable for damages and would be obligated to pay said damages if I am at fault. This is all consistent with standard contract and tort law and requires zero protection from any type of patents or copyrights or whatever.

      And, I have actually told companies I’ve worked for that some code that I write (not all obviously) might be reused if/when I leave for another company. Most companies in the software business know how to secure and protect privileged information (algorithms, processes, designs, etc) and many companies haven’t a clue what is valuable and what is not valuable when it comes to software. Most simply care about delivering solutions to their customers and developers who simply add value.

      Many developers have agreements (informal or otherwise) with their employers/clients to post on public repositories (like GitHub) their own source code. Again, it is not the code that is necessarily valuable as much as the service the software provides as an end. Many companies open-source a lot of their software like Microsoft open sources a lot of things (see http://www.asp.net/open-source & http://blogs.technet.com/b/ad/archive/2013/12/18/open-sourcing-our-developer-libraries.aspx) and yet spend lots of $$$ on the development for it. Sure there are loss-leader type strategies for this, but I think this example is apropos.

      A key thing is that software is always changing and requires constant attention for refinements. So, software rarely stops at "version 1.0" and thus a lot of software comes with tech-support, feature requests, bug fixes, etc - hence the emergence of the "Software as a Service" model.

      Lastly, I’ll say one last thing as it relates to Wenzel’s “Drudge Formula” (a means of getting onto the Drudge Report). If such a thing actually exists, the “value” is not the formula/process/algorithm per se. The value of such a thing is the valued end of the “service” Wenzel is offering to drive more traffic, awareness, attention of someone’s article or story to his site. So, the means for doing this is not what matters as much as the value of providing such a service. Maybe he should call it or “Syndication as a Service.”

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  3. Certainly, if person A has some information, let us call it a secret, and says to person B, "I will tell you this as long as you don't tell anyone else," and person B accepts the offer, then an informal IP agreement has been created.

    If they put this agreement in writing, it would be a contract and subject to the same laws that govern other contracts, no? If that is all Wenzel favors, then I can't object to it. But why even call it IP, then, with its negative (read: government) connotations and confusing usage of the word "property"? Libertarians already believe in private contract law, and the importance of contracts being honored.

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    1. Further: I believe Wenzel once offered a "secret" method in designing your web site in order to obtain a more favorable google search result. If I paid Wenzel for this secret, could I use it? Couldn't others dissect my web site and see the tricks? What if Wenzel's suggestions bring to mind a similar but distinct method to use and I try to sell it? If all he asks is that I not verbatim repeat his advice, possibly an arrangement could be worked out. But it doesn't seem that simple.

      Wenzel's dismissal of utilitarian arguments also falls short. Boldrin and Levine discuss these issues he raises in their interesting book, Against Intellectual Property, available for free download. http://www.dklevine.com/general/intellectual/against.htm

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    2. @JosiahJanuary 6, 2014 at 12:13 PM

      I'm reviewing Shaffer here, not Boldrin and Levine. That mess will be taken down in time.

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  4. How is your copyright work around going to handle music? Answer: It's not. I never purchased a copy of Hotel California but I know what every song on the album sounds like. You play music at a party, you going to get everyone at the party to sign a contract? Ridiculous. "Hey, I don't like that album. Let's play something else. I'll sign a contract to listen to that."

    Trademark was not even addressed. I don't have to purchase a can of Pepsi to know what their trademark is. Contract can't handle trademark.

    Of course patents were not addressed. You're talking about trade secrets in your example. A patent is a govt monopoly on an idea. No libertarian can support that. The market should reward a person who can make use of the idea.

    Trade secrets are a relatively new concept in IP. So it's easy to show contracts can deal with that issue. Patents are not so easy. They're not the same as trade secrets.

    So basically you covered a very narrow situation when a book is purchased. What if the book is lost and found by someone? What if the retailer goes out of business and never bothered to record the contracts signed by the consumers (assuming their is some kind of recording process so the copyright holder knows everyone who purchased the book...btw privacy???).


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    1. You are not even close to understanding what I wrote. But you do sound like a typical anti-IPer. I knew that by allowing you to comment your insane remarks, you would eventually become useful. That you are part of the anti-IP crowd advances my view more than you could possibly know. Today, Jerry, you have proved your worth.

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    2. lol...if you are an anti-IPer you certainly have to feel the sting of the Wolfster, Mr. Commie light, supporting your cause.

      It's natural for that type of mindset however...if nothing else it should make you take a step back as a libertarian and rethink if you find yourself agreeing with Jerry on this topic.

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  5. Nicely done Nick.

    IP-communists also conflate IP with monopoly, when a monopoly is a restriction on *already existing goods ad services*, where IP is a temporary right to exclusive production/providing.

    They have no substantive arguments, and are left with the tactic of offering a constant stream of fallacies.

    http://strangerousthoughts.wordpress.com/2010/11/14/the-economic-principles-of-intellectual-property-and-the-fallacies-of-intellectual-communism/

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  6. Mozart certainly thought quite a bit about money. He spent it faster than he could make it. And regarding creative geniuses and their work, I disagree with Mises' romantic notion of the creation process: Mozart, Beethoven, Haydn, and countless others considered their patron's desires and their audience--i.e., the results--as they worked.

    While I would agree that as a general rule creative people will create regardless of financial reward (Schubert being a notable exception), the longevity of their productive careers and output will be enhanced if there is at least some hope of income. Patronage is one way to accomplish this, and we're witnessing a version of its return. Copyright, through private, voluntary, non-governmental contract, is another.

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    1. I agree with your assessment.

      Genius is not an inherent quality that somebody is born with, like some recessive gene. It's always labeled ex post facto.

      All humans have the capacity for creation, but many lack the time and resources. Call me an optimist, but I think "genius" is just the capacity to use ones resources creatively. When circumstance meets disposition good things happen.

      I imagine that plenty of people do "genius" level work in positions that don't necessarily warrant the distinction: plumbers, teachers, housekeepers, babysitters, dog-whisperers, etc...

      But, I also find it hard to believe that either inherent joy in creation or financial reward for creation are enough to explain or predict innovation at any level as I think they both play different parts to different people in different circumstances.

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  7. Certainly, if person A has some information, let us call it a secret, and says to person B, "I will tell you this as long as you don't tell anyone else," and person B accepts the offer, then an informal IP agreement has been created.

    Bob, in your view would you have an ip claim against a person who was told the secret by B but hasn't signed an agreement with you?

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    1. No but I would ask him to stop repeating the secret and I would have a claim against if at that point if he continued to repeat the secret.

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    2. I don't see how you can say that this is about contracts and yet say you have an ip claim against a third party that has not signed any contract with you. What grounds do you have to go after them? Could you explain what motivation any enforcement agent (insurance co. or security firm etc.) would have in a libertarian society to enforce such a rule, and how would they go about it?

      Thanks so much for tackling this subject! I find the debate over this very interesting.

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    3. If somebody steals your car and sells it to a third party. You certainly can't put the third party in jail, but you can get your car back. If a third party obtains, say, a book, from someone who has broken a contract not to distribute, you can't put them in jail, but you certainly can get your book back and notify them that they are not authorized to reprint.

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    4. Every private property agreement places restrictions on people who were not party to the agreement. You can't live in someone's house without their permission just because you weren't a party to the agreement that made it his house.

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    5. You are confused by the word "property" misapplied to information. The non-disclosure agreements place restrictions on the behaviour of the parties but do NOT treat information as property. NDAs cover information which may NOT be "property" of the source party, too. They do NOT create liabilities to third parties. Just talk to any decent IP lawyer.

      (Besides, most NDAs are unenforceable in practice... because they do not feature consideration, and thus are not valid contracts. But that's a digression.)

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    6. "...but you certainly can get your book back and notify them that they are not authorized to reprint. " ---------

      You have seen an ebook reader and how efficiently the copy and paste function works on a computer right? Physical property in books does not exist anymore. A digital copy of an ebook can happen a million times by the time you finish reading this response. Who will be tasked, pay for and track down of every downloader to forcing him to give back the 1's and 0's in a digital file? Pro IP people completely blank this out! Once it is released in digital form it is infinitely reproducible.There is no way to control it, protect it, or prosecute the billions of people digitally sharing. In the digital realm, IP is a delusion pursued under a state; in the free market it would be extremely limited to the point of uselessness..

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    7. "No but I would ask him to stop repeating the secret and I would have a claim against if at that point if he continued to repeat the secret." This statement is against all human nature..Sure, you could sue the original secret hearer/teller, but any one after that you would be threatening assault on them.

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    8. @Wenzel Thanks for the reply. What would be your response to this argument? When property is stolen, ownership must be proven. With the car I could show a title, registration, pictures of me with the car, insurance claims, bills of sale, affidavit from the previous ownership, and witness testimony. The book might be more difficult, but it could be done. With ideas it becomes a lot harder (it may even be impossible) to prove. You tell your secret to A after A signs a contract. He then tells it to B who post it to the Internet. You find out it is out in the open and realize that A has failed you in his obligation to keep silent as per your agreement. But how do you prove it? 'A' denies leaking the secret and accuses you of having leaked the secret (which he says wasn't worth the trouble) in order to make a claim in court against him. How do you prove it was A who leaked it? Even if you persuaded C to testify against A, A could claim that you and C are in collusion. And even if you felt that the information contained in the secret was absolutely unique in the annals of history and could not be arrived at by anyone before you... You're feelings and beliefs are not proof. I cannot now think of any information that could not be arrived at by someone else. If my car is stolen and I cannot prove that it is mine and the thief cannot prove that it is his but maintains that it is his, then it is his by right of possession isn't it? How then can the 'owners' of the thoughts which IP seeks to make property prove that they are the owners. This is a key issue I would like to see cleared up. Thanks.

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    9. You are asking a question of enforcement, not a question with regard to the theoretical principle of IP. There are many instances that enforcement is difficult with regard to physical property, but that doesn't mean the concept of private physical property is invalid.

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  8. I may have missed it, but do you have a working definition of what you mean when you use the term IP? You use the example of a non-disclosure contract over and over, but I don't think that is what is at issue when people talk about "IP." A lot of confusion could be cleared up just by defining terms.

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    1. Intellectual property is a creation made by a person (or group of people) that is not at its creation physical in nature,the way a chair is, but a mental creation. That mental creation can be put into a more permanent form by writing is down, storing it on a CD etc.

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    2. Every piece of "IP" in any form mostly consists from uncredited (and un-compensated) work by other people. Every real-life inventor knows that. Every real-life writer or composer knows that. Every real-life scientist knows that.

      If they are honest with themselves, of course. Claiming exclusive credit for something which mostly consists of ideas, concepts, etc, created by countless others is disingenuous at best.

      A little reflection on how science, art, and R&D actually work would immediately lead to the conclusion that if "IP" regime was actually enforced, all of the above would be dead.

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    3. I'm neither inventor nor scientist, and I'm no great shakes as a composer or writer, but I can assure you that new compositions and novels do not consist mostly of other people's uncredited and uncompensated work.

      That we have our influences is beyond doubt, but except for the most miserable hacks, each of us filters these through our own experiences and produces something distinctive.

      While it's accurate to say that John Adams didn't invent the idea of the orchestral fanfare, it's also fair to say no one ever conceived of a piece like Short Ride in a Fast Machine before him. Certainly it draws on influences such as Ravel's Bolero, but it is an entity unto itself. And enforcement of an IP regime has hardly prevented Bolero from becoming one of the most performed pieces of the last 75 years, nor from inspiring countless other composers aside from Adams.

      With the novel: has the strict enforcement of Tolkien's copyright prevented the explosion in fantasy writing the past decades have seen? Though some of it is undeniably derivative dross, much is also completely idiosyncratic. George R. R. Martin draws upon many sources, including Tolkien (as Tolkien himself was inspired by William Morris), but Game of Thrones is most certainly unlike any other fantasy novel produced before.

      I reject the assertion that all art is basically derivative. Such a concept is grounded in a collectivist mindset and denies the uniqueness of each individual. It is neither defensible aesthetically nor ethically.

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    4. Well, Chris, I *am* an actual inventor (have dozen of patents to show for that... I hate this game, but as long as it is going on you have to play or be f*d by those who do) and scientist (I wouldn't presume to consider my short stint as an animator as qualifying to being an artist). I think I have a fair idea of what creativity is about.

      Now, if we really consider IP to be "property" then we have to consider it to be just as absolute as real property is - without the random arbitrary exclusions, There is NO way to have a rational explanation for why a concept from Tolkien's work (which itself borrows liberally from a huge number of sources) is qualitatively different from a verbatim quote. In fact, Jorge Luis Borges has conclusively shown (in Pierre Menard, Author of Quixote) that verbatim text copy of a literary work may have completely different meaning if written by a different author (which is a well-known fact to anyone familiar with the information theory anyway). Why is it not a different work, then?

      Why there's that arbitrary "substantial quantity" rule governing audio copyrights? Why it does apply in US, but in UK people got sued (and lost) for 7.5 second sample from a song (Macarena). Is there any rational basis for that? If you listen to modern electronic music you will quickly understand that it is made *entirely* from samples - and often incorporates entire works by other authors, reshaped sometimes to the point of being unrecognizable.

      The deeper you go into details of how IP law actually works, the more you realize it is hopelessly broken, and cannot be fixed - because it starts from the false premise. When you have so many incompatible results of a logical argument you know that at least one of the premises is false.

      People who routinely work with the most complex human artifacts - software engineers, basically rebelled against the whole IP regime by making the explicitly IP-free code the foundation of the entire industry. Every time you use any electronic gadget, it works only because some "IP communist" said "fuck the intellectual property, I'm giving that away for free".

      And, yes, all art is basically derivative. People create new things all the time, but nobody after the first man ever created a work of art which didn't refer to earlier art. In fact, it is what makes it art, what makes it so rich in meaning and what makes it valuable.

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    5. averros: I will disregard the moral ambiguity of your first paragraph to focus on the contradictions between your last paragraph and your earlier comment. You say, "People create new things all the time," yet earlier you assert that all creations consist mostly of other people's uncredited work. Which is it?

      Earlier you state that those who claim credit for their work are disingenuous at best. Why is this so, if they are in fact creating new things? Which do you accept as true: creation is a collective process in which there is nothing truly new or unique; or, each individual has their own distinctive ability to create new things?

      As an aside, do you truly believe people like Larry Ellison have rebelled against the IP regime? The commercial software industry is completely founded upon IP. I suggest you read your licensing agreements rather than just clicking "I Accept".

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    6. You can call it moral ambiguity as much as you wish, but it wasn't me who made the rule that whoever was first to to go through a bureaucratic routine has the right to forbid me to work on my own, independently arrived to, idea. So if I come up with something interesting I *have to* defend myself from a possible attack by somebody who had the same thoughts. The cost of defending can easily bankrupt me or destroy my business. About the only reason companies in high-tech accumulate patents is defensive (this, unfortunately, does not work against patent trolls who do not produce anything and so are invulnerable against retaliatory patent litigation). Trying to make a patent "pay" is usually a fools errand for an inventor - the costs of litigation make it completely uneconomic; only naive nerds hope to profit from patenting things they invented. Only IP lawyers actually profit.

      Precisely because art is mostly derivative the same good ideas come to many different people in a relatively short period of time - the novel solution is often "in the air", and many people start working along similar lines (and come to the same ideas) independently. Both science and high-tech industry is full of examples of that, in fact the "lone inventor" or "genius scientist" cliche is so off the base that a large portion of scientific laws is named after people who didn't come with them first. Working in a dynamic field teaches a lot of humility; and it's quite usual to think of something worthwhile, decide to do immediate things first, and then discover that meanwhile other people already started working on exactly the same thing.

      Now, unlike the physical property, pure information has no value and no meaning outside of context. Imagine an alien coming and bringing the biggest masterpiece - a poem - their race created. It starts sounding like "Bgarggh! Uuu boom Ghm!" which translates as "Fish tiny flower moon!". Needless to say, no human can make anything out of it. It has no meaning. It has no context which would make us able to understand and get value out of listening to it.

      You can only understand a poem because you already share a huge amount of context with the author - the context which was created by generations of people before you both. The sounds of it only evoke feelings and meaning because they refer to bits and pieces of this context.

      Now, do you understand that the very idea of "protecting" the sequence of sounds or letters as if they exist in isolation is thoroughly insane? The message in isolation is meaningless. And so is the act of creating that message "from nothing". This is not my opinion, this is one of the first results in the information theory. You have to have pre-existing shared knowledge to be able to communicate at all. A tiny portion of it is biological, encoded in the structure of the brain, the vast amount of what makes it possible to have a conversation, to read a book, to watch a movie, is learned from other people.

      So, yes, every work of art is a tiny novel addition to this ocean of shared context. It is simply the nature of information, and it has NOTHING to do with collectivism or "you didn't build that". It also makes claims of the authors to creation of entire works out of nothing rather ridiculous. The effect you want to achieve as an author can be achieved in nearly infinite number of ways, so there is no special value in the specific sequence of words or brush strokes. It makes no sense whatsoever to claim that this specific sequence has a value which would justify forcing others to refrain from recreating a similar sequence.

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    7. The digital technology makes mockery of copyright - if you look at the sequence of bits - the actual expression - of the studio recording, and then look at the output of the MP-3 decoder, the bits coming out of the "pirated" copy of that recording, you see that they have no resemblance. They are completely different. What makes them sound similar is the processing within the listener's brain which MP-3 encoder fools (by using psycho-acoustic modeling) into thinking that the second copy sounds the same. The listener's brain recreates the "original" work, in a large part because listener is already familiar with sounds the original work makes use of.

      "do you truly believe people like Larry Ellison have rebelled against the IP regime"

      Larry Ellison made a very good use of free software. Oracle would've been impossible without it. And he did spend huge amount of money to acquire a company the most popular (and most important) product of which - the Java programming language and its runtime and development tools - are given away by Oracle for free. (The licensing agreements on proprietary Oracle products is just waste of print, nobody actually reads them other than lawyers who do not make technical decisions and have nothing better to do, and nobody pays money for Oracle products because of these licenses anyway. If you're an IT guy you want "legit" software because of support and safety of knowing that Oracle won't tell you to get a hike if something goes wrong. The software industry tried enforcing licenses, it tried technical copy controls, and nothing actually worked, until people in charge got a clue and realized that "pirated" stuff works as free advertisement, and actually increases market share of their products. By now most companies simply offer free versions of products, just for signing up and leaving your name, or transitioned to SaaS (software as a service) model - which service is often given out for free as well, in exchange for users providing information about themselves. The currently most influential software company, Google, has built its enormous business on free software and free service by figuring out that the free stuff it gives away can be a vehicle for creating value to other people (i.e. advertisers) - who can be easily excluded, and thus made to pay. These days somebody proposing to launch a company with a business plan dependent on software licensing (rather than support or service) would be looked upon as an idiot. The industry ostensibly totally dependent on "intellectual property" has pretty much given up on it - and is much more prosperous as a result. (Even protection of trade secrets is not what it used to be... a running joke is "oh, they may see our sources... good, maybe they will explain to us how this stuff works!"... and if you want to talk to VCs about your neat new idea and ask them to sign an NDA, you will be immediately politely informed (if they feel charitable) that they won't be funding you. Ever. Because you're totally clueless.)

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    8. Many words, but no concise answer. In saying, ". . .my own, independently arrived to, idea. So if I come up with something interesting. . ." you imply that you believe individuals have the ability to create their own, unique things. Yes or no?

      If the software industry is now free from IP concerns, why do tech companies pay IP law firms millions in annual fees?

      Would you agree with Alan Andersen's Jan 6th 5:40PM comment?

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  9. In imagining the construct of a society supportive of non-aggression, I believe we need to change the context of our imaginations. I believe a libertarian society would reflect a much more decentralized affair: a collection of much smaller cohorts, say 150 people per cohort.

    I believe most common law rulings or taboos would arise as non-aggressive cohorts settled things between themselves. As far as IP, I imagine the use of shame and the inherent benefit of acting towards the good of one's own cohort would drastically effect an individuals incentive to sell-out the IP of someone in their own cohort. They might be shamed or exiled from market transactions.

    I imagine that a lot of the incentives in a decentralized world would, from the ground up, benefit people who would have respect for the things that people did for them in their community. As far as stealing another communities IP, I imagine that exile from market transactions would tend to keep people honest, so to speak.

    As more cohorts became entangled in market transactions, I think third-party common law courts would arise to bring awareness to different cases of IP infringement. I imagine that willingness to accept their rulings would bolster one's reputation in the market for transactions and thus, keep people honest. Those cohorts who used stricter IP and those who used less would rise and fall based on their merits.

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  10. Dear Pro-IP people,

    If I quoted you in an article I wrote, would I have to ask permission first? If your ideas are your property, then I would have to ask permission to quote you for anything I wrote. This is time consuming and not very convenient. I you take IP to its fullest extent, then I would have to ask to use any idea that did not originally come from my own mind. This would be virtually impossible. The fact that it would be virtually impossible for any person to take IP to the fullest extent is a strike against IP itself. This exception does not exist for physical property, for example.

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    1. "If I quoted you in an article I wrote, would I have to ask permission first? "

      People are willingly posting their thoughts/comments here with the understanding they relinquish all rights to them. End of story, your question is answered as it would be the same under any voluntary disclosure.

      Whether you feel the possibility of enforcing IP is possible or not, is not the issue.

      If someone here thinks their thoughts are so valuable that people will pay for them then they have the option of trying to find a model to monetize them and supply you with a EULA before sharing them with you, as one option. But just because the methods by which people may take their mental labor and monetize them successfully isn't apparent to you doesn't justify the theft of them.

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    2. If I gave you consent to use my property, like borrowing my car, I am allowed to retract this consent and reacquire my car at any time. If we were being consistent, wouldn't this mean that I should be allowed to retract my consent for using any of my ideas at any time?

      Therefore, if Isaac Newton, who invented calculus (for the sake of argument we will say Newton, not Leibniz, invented calculus), were still alive, could he retract his consent of using calculus at any moment?

      If so, it would be virtually impossible to enforce.

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    3. You are framing the argument as if this notion of applicability of an impossible consistency means something in terms of defining two drastically two concepts of property.(tangible and not)

      I reject your basis, and would simply add that onus for making decisions on who/what/how one might "lend" IP is simply a more important decision in some respects because as you note, there are complications in getting the property "back". (although restricting its use would be easier, or even finding damages)

      That argument doesn't mean IP is not "property".

      Going further, what if I loan my car out to a person that wrecked it and I wanted it back? If they have no means of returning said car I've lost my property based on a similar decision and it is my responsibility(just like IP).

      Further though, this notion of movement of knowledge into the public sphere, (as you mention in calculus) is something undertaken fairly well by Bastiat in Economic Harmonies.

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    4. If IP is property, then it ought to follow the exact same rules as material property. Otherwise you should concede that IP is not actual property. If you think IP is property the same logical implications that follow from material property should apply if we were to care at all about about making contradictions. We ought not make contradictions if we care about logical consistency.

      Lets say I have an idea and lend this out to someone. That person illegally lets other people know and this idea spreads like wildfire. In order to enforce my right, an enforcer would have to track down any person who received the idea and demand that they do not spread my idea. This alone would be very difficult. Even if they could track everyone down, they basically have no power to enforce this because there would be no way to monitor that person without invading their rights through some sort of surveillance. Since they have no power to enforce this, my right, in effect, becomes void. Whatever enforcement agency in existence would have to expend too many resources to be manageable.

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    5. Forgot to mention, how would any court determine the damages done to me for in order for compensation? I imagine any decision made would be very arbitrary for there would be no way to measure the loss that I incurred as a result of the loss of my idea.

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    6. "Forgot to mention, how would any court determine the damages done to me for in order for compensation? I imagine any decision made would be very arbitrary for there would be no way to measure the loss that I incurred as a result of the loss of my idea."

      This is what arbitration is for, discovery, etc.

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    7. "If IP is property, then it ought to follow the exact same rules as material property. Otherwise you should concede that IP is not actual property. "

      Very simply, no it should not. Just because you would like the concept of what property is to be "tidy" or fitting your specific idea of how the logic should work doesn't make it so.

      Running with Wenzel's concept of "designed rights", we get to dictate what is defines property, harm, etc.

      What if I reversed the burden back to you and said, "If material items are property, then they ought to follow the exact same rules as IP."?

      Do you see the fallacy? You are trying to mix the characteristics of tangible and intangible together on a logical basis to make an argument without regard to their differences.

      Even further though, THE CONCEPT OF PROPERTY EVEN IN THE MATERIAL SENSE IS FIRST AN IDEA!!!!

      What further proof do you need of the importance of respecting intellectual concepts as property when appropriate if not the above?

      See Alan's statement below on how this might work.

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    8. @Hank 9:47 A.M.

      If someone breaks into a farmer's corn bin. They steal all the corn, and they quickly spread the corn out to hundreds or even thousands of people. It will be very difficult for the farmer to recover his corn. That doesn't mean it wasn't his property.

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  11. Well both sides can agree: the government needs to be removed from the equitation. After that I doubt IP protection would be much different than what it currently is: a hollow promise. In a free market the IP holders would be footing all the costs of IP enforcement which means paying for boots on the ground for every infraction.

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  12. @anonymous

    "If I quoted you....etc"

    Because two forms of "property" are different in kind (thoughts and shoes, for eg.) they are treated differently, both in practice and in law.

    Not difficult to understand except for people with an agenda.
    The whole anti-IP argument is a corporatist front, as I've argued since I first came across this trend of thinking.

    The anti-IPers are full of circular arguments, assuming what they need to prove, confusing practice with theory, IP with copyright and patent, monopoly practices with free-market practices, state law with private property rights, and a million other things. Then there's the dreary jargon and righteous posturing.....

    Wenzel needn't produce a book to have credibility on the issue.
    He needs to argue correctly, which is he is doing. He is defending a very solid tradition so the onus is on those who would dismantle it, not on him.

    Because something is hyped to the 'n'th degree by one's mostest bestest friends on the net, it doesn't follow that one has revolutionized thought.

    Niche thinkers on the net, unless exceptionally self-aware, tend to suffer from grandiose delusions about their wider influence.... that are not matched by reality.

    In short, the anti-IPers are all hat, no cattle.

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    1. "He is defending a very solid tradition so the onus is on those who would dismantle it, not on him."

      http://www.nizkor.org/features/fallacies/appeal-to-tradition.html

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  13. "Nor can the inclusion of a copyright notice in a book be defended, under contract principles, as such provides no evidence that the buyer has agreed to respect the presumed property claim prior to his purchase."

    That's debatable too. If you walk into a cafeteria, get served and eat food, you can't walk out without paying a bill, even though you never signed a contract.

    You can always choose NOT to read a book, if you don't feel you can stop yourself from stealing other people's research or storyline.

    The real problem seems to be the criminality of the white- collar crowd and their desire to white-wash their preferred crimes.


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    1. "The real problem seems to be the criminality of the white- collar crowd and their desire to white-wash their preferred crimes."

      Well put.

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  14. In a free society, each person would be free to define IP as he saw fit. Then disagreements would be worked out non-violently by negotiation and arbitration. Societal norms would develop and people who refused to adhere to them by constantly abusing the societal norms as to how they can use the intellectual works of their neighbors would be ostracized. Some artists would find it more profitable to rely on live performances; others might rely on contracts and non-disclosure agreements; still others would focus on the profits from being the first to the market with physical products embodying their work, like book publishing, etc. But in all cases, each person, to live peacefully in society, must accept their neighbors' IP views as a given, and work with them. Complete outliers would be cast out.

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    1. Alan, I really love your statement. Kudos to you.

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  15. RichieJanuary 6, 2014 at 4:54 PM

    "He is defending a very solid tradition so the onus is on those who would dismantle it, not on him."

    http://www.nizkor.org/features/fallacies/appeal-to-tradition.html


    Um. You're confusing two different things.
    I am making the argument that when one's own argument (based on logic) has a solid tradition of ARGUMENT AND LOGIC behind it then the onus or greater responsibility for providing proof lies with the person attempting to dismantle that tradition.

    http://rationalwiki.org/wiki/Burden_of_proof

    Drink deeply etc. etc.

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  16. This is for the no argument name callers: IP Communist is a loaded term for those who have a weak case. Communism at its core is slavery where even one elses body and property is controlled by a select few. Those who hold magical IP rights get to say what I can and can't do with my property and body. In other words they I am their "property right". The actions of my body and physical property become theirs to dictate use of. Communism is slavery - in which you don't own your body and property the IP holder does. And as far as who is enslaving who in the IP debate: I definitely do not enslave a secret holder if I release it against his will.

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    1. " I definitely do not enslave a secret holder if I release it against his will."

      No, you've just stolen from him and may be liable for damages as a result, especially if you were bound by a contract with him.

      "Communism at its core is slavery where even one elses body and property is controlled by a select few. "

      You're not quite right there, the main eventual goal of communism is communal property-which is why it applies to those who don't respect someone's mental labor as being property.

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    2. "No, you've just stolen from him and may be liable for damages as a result, especially if you were bound by a contract with him."

      I understand that you may be liable for damages as a result of releasing someone's secret against their will, given that you agreed to a contract not to do so. However, the 'especially' just doesn't fit in my mind. You can be held liable for damages as a result of leaking a "secret" against the originator's will, even if you are not bound by a contract with him. Even if you've never seen him or come in contact with him. How on earth do you justify this?

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    3. "You can be held liable for damages as a result of leaking a "secret" against the originator's will, even if you are not bound by a contract with him. Even if you've never seen him or come in contact with him. How on earth do you justify this?"

      You are probably correct, I used "especially" only in that I didn't think through all of the possibilities and wanted to qualify it(for now).

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