Tuesday, January 14, 2014

The Criminal's Case Against Intellectual Property

I do not want to get into a full discussion of intellectual property in this post, that will come in time, but a recent Sheldon Richman commentary brings to the forefront a view that is prevalent with anti-IPers, which I find particularly odd, and I do want to comment on that now.

Richman writes:
I won’t try to recap the whole case here, but I do want to answer a question that will occur to many advocates of liberty: How can someone who supports property rights in physical objects deny property rights in intellectual products, such as the useful application of scientific principles or patterns of words, musical tones, or colors? Suffice it here to quote from “Patent Nonsense”:
There is a distinction between physical objects and ideas that is crucial to the property question. Two or more people cannot use the same pair of socks at the same time and in the same respect, but they can use the same idea — or if not the same idea, ideas with the same content. That tangible objects are scarce and finite accounts for the emergence of property rights in civilization. Considering the nature of human beings and the physical world they inhabit, if individuals are to flourish in society they need rules regarding thine and mine. But “ideal objects” are not bound by the same restrictions. Ideas can be multiplied infinitely and almost costlessly; they can be used nonrivalrously.
If I articulate an idea in front of other people, each now has his own “copy.” Yet I retain mine. However the others use their copies, it is hard to see how they have committed an injustice.
Think about this for a minute. This view would not be the view of the creator of an intellectual idea, who is interested in controlling the use of the idea he has created. He may, for example, stipulate before discussing an idea that he is only revealing his idea to parties that agree not to further pass on the idea. Thus, anyone who violates this agreement, by passing it on after agreeing not to, would be breaking a contract, that is, they would be committing an injustice. Thus, it is not hard for me to see how an injustice can be committed in the world of intellectual property---unless you don't believe in the sanctity of contracts.

But let's move on to the case of a third party, who does not have authorization from the creator to pass on some type of intellectual property, but nevertheless has obtained a copy of the property from someone else who has violated the terms upon which the creator passed on the property.

As soon as a creator contacts the third party and informs him that the property he is redistributing was issued to him via a broken contract, then, one would think, that, in a libertarian world, the third party would want to stop passing on the property, that is, unless he is a criminal.

What possible justification could a third party have at that point to continue reproducing the intellectual property, once he knows that he has obtained it via a broken contract? His only defense is to distort the range of damage that could be done to the creator.

The "you still have your copy" view is the perspective of the person who has without proper authorization obtained the creator's work and is in some way using the work in a manner objectionable to the creator. That is, the unauthorized user's reply may be, "Hey, I have a copy, but so do you." But, why is this advanced as the supposed key focus point of the creator of some intellectual property? That the creator of an intellectual property may still be able to use the property that he created may not be the key focus of the creator at all. Indeed, it might very well be that the creator's focus may be on the fact that unauthorized use of an intellectual creation may result in competition in the market against his ability to market the property and thus lowers the revenue stream that he may be able to achieve from his creation.

Indeed, personal use value may not even be of importance to a creator. If I stop blogging, the only value that my formula, on how to get linked on the Drudge Report, may be the revenue I can earn by selling the formula.

The "Hey, I have a copy, but so do you." is a distortion of what may be the value to the creator of a given piece of intellectual property. It is not the view of a creator of a piece of intellectual property, who wants to protect his creation. It is the weak justification of someone who has obtained intellectual property through a broken chain of authorized use.

71 comments:

  1. Everything is material. Agree or disagree?

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  2. The argument of IP truly revolves around who is the actual aggressor in the concept. The sharer/user of others Ideas and formulas has not threatened physical harm in any way to the original thinker. The claimer of IP, however, must threaten physical harm on all other human beings who happen to come in contact with his thoughts. His perceived understanding of property rights and the possibility that many others can transfer his or her claimed ideas and thought formulations by simply using their own body freely is something that must be stopped with violence. Computers are essentially copy and paste machines, for IP to be properly enforced by the State, those functions need to be removed from all operating systems. As well, all internet data transmission must be combed and searched for contraband IP. This effort would take an organization like the NSA but to the tenth power.

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  3. The violent desire of IP privileges to prosecute IP infringement is the same regardless of whether it is under a State or in a libertarian world. The sole difference being who is paying to appease that violent desire. The Libertarian IP model would have the IP claimer paying to prosecute millions of users of his "property". I don't think private insurance firms would cater to this, and if they did, the premiums would be into the stratosphere for even the brightest talents to protect 'their' work in any field.

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    1. So it is not "their" work? It is yours?

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    2. Most of the things to which you refer as "work" in the IP sense, is actually a finished product consisting of elements which themselves are the "works" of others. So in that case, how is ANY "work" anybody's?

      If some physicist explains the theory of relativity in a book, is he to pay royalties to the Einstein family every time he does it? Has this in fact been done? This is of course just one particular example in an endless ocean of borrowed "works" with which new "works" are constructed.

      So why don't you think about a world in which you either have to ask permission, pay royalties or BOTH before you can express ANY idea and claim it as your own, because the chance is zero that you can express any idea that is built from elements which themselves are also 100% yours.
      Don't be afraid to take things to their logical conclusions. Don't stop at an imaginary 'border' that happens to be convenient for your pro-IP position.

      You are looking into the abyss of a mental form of totalitarianism. That's what happens when you apply property rights to things that are NOT scarce. They are not to be applied merely to YOUR finished ideas, but also to the elements that you have used to build those finished ideas.

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    3. "The violent desire of THEFT privileges to allow THEFT is the same regardless of whether it is under a State or in a libertarian world. The sole difference being who is paying to appease that violent desire."

      There, all fixed for you.

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  4. both sides here make very good and libertarian points. what I take from this is you can still have IP in libertarian society AND that people can't use the power of the state to enforce things on a document lodged in an office in DC.

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  5. RW: "As soon as a creator contacts the third party and informs him that the property he is redistributing was issued to him via a broken contract, then, one would think, that, in a libertarian world, the third party would want to stop passing on the property, that is, unless he is a criminal."

    What crime did the third party commit? You may argue that it is immoral for him to continue to pass along the property. But seriously, in a stateless society what crime did he commit by spreading the property? What crime did he commit to continue to do so once notified that OTHER PARTIES breached a contract (a contract the third party was not party to).

    Seems like you;re a little sloppy with your words there.

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    1. Ha,, of course I am sloppy in my post of calling someone sloppy.

      But I do stand by my contention that Mr. Wenzel is sloppy in calling the third party a criminal. I would greatly appreciate someone explaining to me what crime the third party committed a crime (in violation of the NAP)

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    2. thank god I didnt go to work today. This fever has officially destroyed my ability to type a few coherent sentences together.

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    3. "...that is, unless he is a criminal."
      Respectfully, a better word would be 'tortfeasor'.

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    4. "greatly appreciate someone explaining to me what crime the third party committed a crime"

      Traditionally speaking in a common law manner, "receipt of stolen property".

      The violation of the NAP would be the indirect participation in the theft, which would be the subject of discovery to see whether it was intentional or not.

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    5. I'm not worried about common law.

      Furthermore, the property was not stolen. There was a sale, a contract which party A and B agreed to, and a breach of that contract by giving "property" or allowing the third party to view certain materials.. A breach of a contract doesnt retroactively turn the original "property" into being stolen rather than acquired through a voluntary exchange.

      Try again.

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    6. and the reason I'm not interested in common law is because RW called the third party a criminal in the context of a "libertarian world"

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    7. "tortfeasor"? Wow, really creative.

      What tort did the third party commit?

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    8. @831pm
      a) the tort of conversion
      b) the tort of intentional interference with contractual relations

      A conversion is a voluntary act by one person inconsistent with the ownership rights of another - this can include intangible property. E.g. in Kremen v. Cohen, 325 F.3d 1035 (9th Cir. 2003), when the domain name sex.com was wrongfully transferred to a con man, a claim for conversion was held to be available against the domain name registrar.

      The 2nd tort occurs when a person intentionally damages the plaintiff's contractual or other business relationships.

      Also, a basic principle of law is to prevent unjust enrichment.

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    9. Oh brother. Nice Wiki search.

      again, you are applying "common law" and government "law" (aka politician scribbles) to a world that Mr. Wenzel explicitly stated was a "libertarian world" (aka a stateless society). You cannot import government "law" into a world where government does not exist.


      You are literally using case law to defend your position? Do you not see the irony? You are using decisions from STATE paid lawyers (aka judges) regarding STATE created "laws" (threats written by the legislative branch of the ruling class) to defend IP in a stateless society.




      So again, please explain how the third party is a criminal (in a "libertarian world" /stateless society. How has he violated the NAP?

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    10. None of us can predict for sure how law would develop in a world without government. In earlier times a typical case was A owned a forest and B chops the trees down and makes off with the lumber. The judges decided this was wrongful interference with the enjoyment of A's private property and called this the tort of conversion. Again, where A and B have a contract and C induces B to break the contract the judges held C is liable to A for the tort of contractual interference. To me, these decisions accord with common sense, these match what is likely to be decided in a libertarian society, and these concepts are relevant to this situation.

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    11. I am not asking you to predict how the law will develop. I am asking how the third party has violated the NAP.

      You are insistent that C is "inducing" B to break his contract with A.
      1. This was not in the facts of RW's post.
      2. I will admit that it is possiblepossible for that to happen. Even if C induces B to violate the contract with A.... explain how that violates NAP (the cornerstone of a "libertarian world")
      3. It is also possible that B voluntarily gives C the "IP Property" and C has no idea that there was a contact between A and B. How has C violated the NAP in this situation?


      Saying that X is a crime in today's society does nothing to explain the criminality of X in a stateless society. If you (and others... especially Mr. Wenzel) are willing to label the third party as a criminal, it is only fair that you actually explain how the third party has violated the foundation of a stateless society (in a circumstance where the third party induces a breach of contract and where the third party is oblivious to the contract between A and B)

      Either way... you are going to wind up talking about CONTRACT law and torts... not IP.

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    12. Isn't this an obvious question that should be easily answered by the pro IP crowd?

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    13. @11:20,
      Obviously I cannot speak for RW. For me, as you say, IP can be protected under contract law and tort.

      Regarding the NAP, how do we define 'aggression'? If we define it as 'violence', then breaking a contract or committing a tort are not violence and the NAP is not broken. If we define aggression as 'interference with a person's property' then the NAP is broken.

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  6. Cause being called a criminal, communist and general all around thief is the only true methods of Pro-IP people . Their arguments ignore the obvious points already made and hinge on smearing.

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    1. "Their arguments ignore the obvious points already made and hinge on smearing."

      While all of us self identified libertarians would find being labeled "communist" in any of our thinking as repulsive, the fact remains that if you desire someone's personal property to become "common", publically shared, etc., that is in essence a communist philosophy(no smear intended, simply a statement of fact).

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    2. So you believe there would be no thieves or other criminals in a libertarian world? Every last psycho would turn into an angel? Free Charles Manson?

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  7. Your attack jumps off with the caveat of a contract being initiated, which muddies the whole discussion. If nothing physical is stolen, and no contracts are violated, then I.P. is not scarce and therefore a property right is not needed. To enforce a property right in this case requires coercion and force. You lose.

    I officially hate you Robert. You were once my favorite libertarian writer. Now, you've become a cul-de-sac for bad libertarian ideas. I hope you fade into obscurity quickly.

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    1. The notion of property is first an idea. Why should I bother to respect that idea at all?

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    2. (For my part) I agree that in the absence of a contract, IP can't be protected. The situation you are describing sounds like independent discovery.

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  8. When is the last time you heard that some ones car was stolen 10,000 times in the last hour?

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    1. Ha, you should have lived where I live in Brooklyn before gentrification! lol

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    2. What does being stolen 10,000 times have anything to do with it? A software program that has exclusive applications for a small set of super computers could occur. You are mixing up the principle versus enforcement. Not even in the physical world is all property protected 100%

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  9. " If nothing physical is stolen, and no contracts are violated, then I.P. is not scarce and therefore a property right is not needed. To enforce a property right in this case requires coercion and force. You lose"

    IF you assume scarcity is the basis of property rights.
    He apparently doesn't or define it differently.

    You lose..

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    1. Just because he disagrees doesn't mean his wins. It doesn't matter how you, me, Robert Wenzel or anyone assumes or defines anything. What matters is fact and reality. In order for anyone to win, one first has to prove logically that one's definition or argument is objectively superior.

      And property rights have been "invented" for the purpose of avoiding conflict in a situation of scarcity. Not in order to "make money" or anything like that. Nobody claims to own air and nobody fights over it. Because it's not scarce. And neither are thoughts. You have no way, NO WAY, of proving that any idea originated solely from your brain. The concept of zero, to name one example, was invented/discovered in three different regions, independently. And even if you could somehow prove a finished idea comes from your brain, all your ideas are constructed of elements that originated in other people's brains. I don't see any pro-IP'er paying royalties to all the people (or their descendants) who's "elements" they use to construct their own finished thought. Ideas don't form in a vacuum.
      If IP exists, then ALL ideas are produced from material taken (most without explicit permission) from others and are therefor partially theft. Like stealing the wood or cement with which you build your own house, or stealing the paper on which you'll write your own novel.

      To argue for enforcing I.P. consistently, is to argue for intellectual totalitarianism.

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    2. Some 'thoughts' are not scarce. The formula for Coca Cola is scarce.

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  10. Imagine a world in which no knew how to make fire. No lightning, no natural occurrences. The combo of flint and steel is the only means of achieving fire. Would Wenzel defend that property right? The "right" of first discoverer of fire to withhold it (If Wenzel can explain how to do this without force I'd like to know)? Would he defend that "Intellectual Property" right? The one that got man out of the darkness. If so, how long does this first discoverer retain that right? Would his descendants still be getting paid royalties today.

    AHHHHHH Wenzel! You drive me nuts.

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    1. You misstate my view. I have consistently said that I hold the Rothbardian view on IP, which is not a first discoverer position, but rather a position that independent discoveries are fine.

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    2. Ok Wenzel. I will take you at your word. Independent discoveries are fine. So if someone creates IP, and NO ONE ELSE CAN FIGURE IT OUT, then he can keep his IP, obviously. Isn't this just saying that water is wet? If only one guy has an idea and he doesn't tell anyone, than the only means of getting it from him would be force, which is a violation of non-aggression. So yes, in that case, the guy can keep his IP. But if that idea leaks out of his head into another head, then force must be applied to contain it. Again, a violation of non0agreession. It is that simple Wenzel.

      If that is your concession Robert than this debate about IP is over.

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  11. The more I think about this the more I start coming around to Wenzel's point of view.

    Suppose a girl lets her boyfriend take some questionable pictures of her after he signs a contract saying he will not redistribute them under any circumstance. They break up and he posts the pictures to GirlfriendRevenge.com. Is her legal recourse limited to the original party to the contract, the (now ex-) boyfriend? Does she not have legal recourse against the website to have the pictures removed? Can the website simply claim that they did not know the boyfriend was bound by contract and thus are entitled to keep them? Can the website use a non-scarcity argument to justify keeping the pictures? Does her interest in the pictures have anything to do with scarcity at all?

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    1. I made a very similar argument, during the Kinsella-Wenzel debate, only applied to child pornography. I wont repeat it in depth here, but basically the argument is that if you hold the Kinsella-IP you get bogged down in a sort of nihilistic materialism. You end up asserting that property rights in the physical tape (of the porno) should be upheld against the parents of the victim attempting to repossess it. When we all know in reality that no one really gives a *%^$ about the physical tape, but about what is on it. Put another way, Kinsella-IP people will go to extreme lengths to avoid the reality that the debate is about access, since the parent doesn't necessarily have a right to destroy physical property but prevent access to the material (destruction of hardware vs destruction of data). Basically you ask them if you have a right to view pornography of someone's child they will say, "depends on how you got it."

      Same argument works for any sort of crime footage. If someone breaks into your house and makes a snuff-rape film with your wife, then makes copies and sells them. Do the 3rd parties have a right to these tapes? What I want from any Anti-(Rothbardian)IPers is an answer to this question:

      If the above happened to my wife, would I be justified in going to house of someone who has the tape and taking it (or destroying it) without harming them, or their property? Or should I be held liable as an aggressor for forcing my way into their house? If I should be held liable, would it only be for trespassing, or could I also be held liable SPECIFICALLY for the destruction of the porno-snuff tape?

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  12. "As soon as a creator contacts the third party and informs him that the property he is redistributing was issued to him via a broken contract, then, one would think, that, in a libertarian world, the third party would want to stop passing on the property, that is, unless he is a criminal."

    Here is where you need to focus your arguments. Libertarians do not disagree with the notion of contracts. It is when you begin calling the third party "criminal" that people take issue. Yet all of your posts I have read on IP focus on contracts--you're skirting the issue.

    Suppose, for example, there never was any contract involved: You are authoring a book and during that process, in attempt to send a copy to your editor, you mistakenly send it to a third party. The third party reads it, loves it and distributes it. The question is, in a libertarian society do you have justification to utilize violence against the third person? Even if you contact the third person and they refuse to cease and desist, I see no justification for violence.

    Going even further you continue to refer to "the property", but I have not seen the basis on why the intangible should be considered property at all.

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    1. When an author accidentally emails a book to a 3rd party, there is no contract between them so the 3rd party is free to re-distribute the book - unless there is a clause covering this situation in the contract between the 3rd party and the email provider.

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  13. I think intellectual property would be handled differently in a free society. whereas now, the government is used to assist an IP owner in maintaining a monopoly on the idea for an arbitrary amount of time, in a free society, the discoverer of said idea would either begin distributing it himself, or if distribution is not something he's good at, he'd sell his idea to someone who is good at distribution. It is not theft for me to use more efficient processes to make an iPhone to sell at half the price. People would still buy them from Apple because of the brand loyalty or Apple has better quality since they have more experience with the ins and outs of their ideas. but the world would have more choices without the idea intellectual property (monopoly on an idea).

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  14. I wonder how much overlap there is between the anti-IP crowd and the pro-bitcoin crowd.

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    1. Or between the pro-IP crowd and the anti-Bitcoin crowd.

      But you probably don't wonder about that, because you happen to belong to those, i assume?

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  15. The ONLY reason the concept of property exists and has value is because it provides the conflict-free system of allocating control of physical objects - which is necessary ONLY BECAUSE the physical objects are by their nature have definite location and thus allow only exclusive control at any moment of time. (For clarity, I will skip the discussion of quantum effects and why this property of physical objects follows from the quantum no-cloning theorem).

    This is NOT true of classical information. The whole raison d'etre of the property rights system DOES NOT EXIST for information. It is a purely artificial edifice erected solely for the benefit of the state and publishing cartels.

    The bottom line is: there is nothing in the nature of information which prevents conflict-free interaction if there are NO property rights in the information. This is in the stark contrast to the physical objects where lack of property rights immediately leads to violent conflict for control. Therefore trying to maintain property rights in classical information is completely unwarranted limitation on liberty - and an attempt to solve a problem which does not exist.

    Now, the rationale that "creator created it and so has right to benefit from it" is nothing more than restated labour theory of value. This is a fundamentally Marxist argument. NO ONE HAS ANY RIGHT TO BENEFIT FROM ANYTHING HE CREATED. The reason for the system of property rights is to eliminate violent conflict (as long as everybody adheres to the rules), not to guarantee income.\

    Finally, the IP rights are logically incompatible with property rights in physical property. The whole point of IP rights is to prevent people from using their physical property in ways which would "infringe" on the "rights" of the first-to-file inventor or author.

    So, Robert, unless you offer a compelling explanation why the system if IP rights is necessary to prevent conflicts for control of something which has value, you have no case for IP - of contractual kind or not.

    Note also that my argumentation does NOT depend on the fact that information has value - of course it has - but so have personal memories, a smile for the stranger you pass on a street, and being charitable to others - *none* of which is property.

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  16. While I agree with RW on many issues. I don't agree with his stance on IP. NDAs are a valid contract and anyone violating them should be prosecuted, however someone who has no contract with the originator of an idea or any kind of IP cannot be a criminal regardless of who they distribute the IP to. My thought on IP is that in a libertarian society IP would be regulated by morality rather than legality. Distributing someone elses IP without an NDA should be seen as an immoral act on par with lying or adultery. It should be frowned upon but it isn't criminal. Vices are not crimes! As someone who works in the information industry (I design and create computer software) it would be very annoying for someone to take my work and sell it to someone else without giving me any compensation. That is why I take measures to protect my work through the use of encryption and NDAs. If someone I have an NDA with leaked my IP I would definitely prosecute them to the fullest extent of the law and in a libertarian society I would support draconian contracts that would make someone think very hard about breaking an NDA. However whoever received my IP would in my humble opinion be a jerk not a criminal for using it without paying for it.

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    1. "NDAs are a valid contract and anyone violating them should be prosecuted."

      This my friend, makes you pro-IP.

      "I don't agree with his stance on IP."- I think you do, and do quite realize it.

      "However whoever received my IP would in my humble opinion be a jerk not a criminal for using it without paying for it. "

      What "discovery" would ostensibly be for, is determining whether the 3rd party knowingly take IP in violation of the contract between A & B, which ostensibly would be theft.


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    2. Just because one recognizes the validity of NDA contracts does NOT make you pro - IP. An NDA is a matter of contract law. Not IP. There is a huge difference.

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    3. edit: "I think you do, and don't quite realize it."

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    4. for example.

      I offer you $100 for you to tell me an embarrassing secret about yourself. You agree on the condition that I do not tell anyone else. We sign a contract stating that there are damages if I tell someone else the secret.

      You tell me that you had to repeat senior year of high school because you flunked your first attempt.

      This is not IP, yet we have a valid NDA contract.

      If I breach this contract and tell my friend Tom that you failed senior year of high school, you have a cause of action against me (under a breach of contract theory). You have NO claim against Tom. Legally speaking he may repeat this secret as much as he wants (though that may be arguably immoral).

      Pro IP people simply mistake IP law for contract law.

      Oh and by the way, Tom is not a criminal for knowing the secret. Tom is not a criminal for repeating the secret because he has no agreement with you. And I the two of us have no power to force Tom to be part of our contract under any principle of agency (read Lysander Spooner)

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    5. @ anonymous 11:01 PM
      Go back to the rental car example. If I sell Tom a rental car, Tom may not be a criminal, but Tom still has to return the rental car to the proper owner, because the rental car was not mine to sell. Thus, Tom is bound by the rental agreement, which bars me from selling the car, even though he was not part of the contract.

      But, but, you will argue, the rental car is property and the IP is not property. And we are back to chasing each other in circles with our axioms. Do you see how this is a question of different axioms about what is valid property? This cannot be settled with these kinds of examples.







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    6. "Do you see how this is a question of different axioms about what is valid property? This cannot be settled with these kinds of examples."

      This is an excellent statement. I have come to the point where I really don't want to argue anymore over the fundamental definition of what "property" is or is not.

      Regardless of who is defining it as such, let them whine if they appropriate something they are not supposed to and suffer the consequences for it.(whether the paradigm is stateless or not) I could use the same argument in draining water from their pond to justify my taking it.

      How many people here would redistribute Ron Paul's TV program against his wishes and dismiss it as "just IP" in justification as doing so? Even further, what if it's music?

      You phrase the problem correctly and Wenzel is completely correct is his "designed rights" philosophy.

      I'm tired of arguing in circles over the fundamental disagreement of what constitutes property when that very notion itself is AN IDEA THAT MUST BE RESPECTED before it's even applied to material property.

      The fact many don't see their own hypocrisy on the matter is enough to make me cease discussions on the matter.

      I've come to the conclusion that for many, the attempt to strip the notion of "property" from IP is nothing more than a shallow attempt to justify theft.

      The issues surrounding IP enforcement and ownership are very difficult, so what many of the anti-IP crowd has done is "thrown their hands up" over problems they see as unsolvable, de facto justifying theft as a result.


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    7. @ Ed Ucation

      I was simply pointing out that if simply because you believe in the validity of NDAs does not mean automatically make you pro IP. NDA's have plenty of uses outside of "IP"


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    8. @ Anonymous 10:13 AM

      How intellectually lazy can you be? You seriously think people like Hoppe hold their views to justify theft?! What an absurd contention. You and I both know you would never make such a claim if you were to debate Hoppe. So why make that charge here?

      The Pro-IP argument is lacking
      Read comments by RW in this post.

      http://www.economicpolicyjournal.com/2014/01/in-review-libertarian-critique-of.html

      The entire case amounts to this.
      1. RW "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." So stated differently, IP is an idea in your head.

      2. How can I take advantage of my "IP"? I can sell, lease, or rent it. (nothing unique to IP here, you can sell, lease, rent any sort of property.)
      3. How do I prevent widespread dissemination? Get the purchaser/lessor to sign a contract.

      And there you have it. If you have an idea and you wish to capitalize on it, you need to write a contract.

      Apparently breached contracts regarding ideas come with special powers though.

      In the link above, when considering the possibilities an "IP holder" has against a third party who has obtained a secret, RW writes that "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."

      Really? What kind of claim (in a stateless society)? Its obviously not breach of contract claim. There is no contract between RW and the third party. RW is claiming that he, as the "IP holder":, has the right to restrict the speech of a third person whom he is not in a contract with. Hmmm quite libertarian. Who is violating the NAP here? Wenzel as the IP holder, or the third party? Ummm Wenzel. It may be against RW's wishes that the third party not continue to spread the secret, but his argument that he can actually restrict the speech of the third party amounts to nothing more than "it was my idea first." Ummmm so what? Having an idea first gives you the right to threaten others? How interesting.

      RW continues "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."

      Amazing, RW is comparing a theft followed by a voluntary sale (in the car example) to a voluntary sale, a breach of contract, followed by a voluntary sale (in the book example). Two voluntary transactions are not the same as a theft followed by a voluntary transaction.

      Everyone knows this, so the breach of contract is the focal point. How a breach of a contract between RW and B give RW rights over C (someone who isnt a party to the contract)? umm the truth is it cannot. A breach of contract does not retroactively turn a voluntary sale of the book into a theft. The sale of the book was still voluntary, there was just a breach of the terms of the sale of the book.

      Again, RW is claiming the right to restrict the speech of someone he is not in a contract with. Where does someone get these magical rights? Seems like if you come up with an idea, and you sign a contract with another person, that contract is broken, somehow the creator of that idea gains all sorts of rights and privileges over everyone else in the world (despite not having signed a contract with them).

      The truth is the third party does not need authorization to re print the book from RW. The third party never agreed to any restrictions with RW, yet RW is claiming that he can place restrictions on the third party against his will (RW is initiating violence or the threat of violence).

      Delete
    9. "How intellectually lazy can you be? You seriously think people like Hoppe hold their views to justify theft?! What an absurd contention. You and I both know you would never make such a claim if you were to debate Hoppe. So why make that charge here?"

      I never claimed what you are suggesting:

      "I've come to the conclusion that for many, the attempt to strip the notion of "property" from IP is nothing more than a shallow attempt to justify theft."

      The operative word is "many". I haven't applied it to everyone, but it is quite clear that many argue anti-IP for less than noble reasons.

      As you feel the pro IP argument is lacking, I feel the same for the anti-IP argument.

      I'm not sure it will ever be resolved fully, as the center of the debate revolves around the definition of what property "is". This debate reminds me of the abortion debate.

      You suggesting I am intellectually "lazy" might have merit for some people, but not to me.

      I simply don't like butting my head up against a proverbial wall when I feel I've adequately explored the issue and the talking points start getting circular.

      It's a waste of my intellectual capital from my perspective and I've yet to read anything new in terms of thoughts & ideas on the topic for a good six months now.


      Delete
    10. @ 1:11 PM

      I see. I misread you.


      Care to handle any of the issues I raised in the post above yours?

      Delete
    11. I really don't see anything that needs to be addressed, you seem to see the validity of A vs. B scenarios contractually even if we disagree on what property *is*(unsolvable in my estimation), but your whole concern is the "C" party issue.

      I've responded elsewhere that would be the subject of "discovery" in damage proceedings, some have suggested they don't care about "law", I'm assuming on the basis of it being state run currently...I simply say that any privately run mediation/arbitration institution has to have some basis in "law" in that if we all agree that respect for "property" is what brings about civil society(not to be confused with government).

      Again, the idea being conflict resolution....it all seems pretty straightforward to me. Not really sure what there is that warrants further response from me based on what you're written. But then again, maybe I'm being intellectually lazy. :)

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    12. I think you guys are missing my point here when you focus on discovery relative to party C. To be sure, if party C was somehow complicit in the contract between A and B being broken, then party C might face damage charges. However, my focus is on party C AFTER the creator, party A, informs party C that he is unauthorized to reproduce the intellectual property in question, but fails to stop the reproduction.

      Delete
    13. RW, please explain how the third party is a criminal. How has he violated the NAP?

      How does a breach of contract between A and B give the "IP owner" rights to restrict the speech of the third party in the absence of a contract?

      I will reproduce my points again.
      Read comments by RW in this post.

      http://www.economicpolicyjournal.com/2014/01/in-review-libertarian-critique-of.html

      The entire case amounts to this.
      1. RW "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." So stated differently, IP is an idea in your head.

      2. How can I take advantage of my "IP"? I can sell, lease, or rent it. (nothing unique to IP here, you can sell, lease, rent any sort of property.)
      3. How do I prevent widespread dissemination? Get the purchaser/lessor to sign a contract.

      And there you have it. If you have an idea and you wish to capitalize on it, you need to write a contract.

      Apparently breached contracts regarding ideas come with special powers though.

      In the link above, when considering the possibilities an "IP holder" has against a third party who has obtained a secret, RW writes that "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."

      Really? What kind of claim (in a stateless society)? Its obviously not breach of contract claim. There is no contract between RW and the third party. RW is claiming that he, as the "IP holder":, has the right to restrict the speech of a third person whom he is not in a contract with. Hmmm quite libertarian. Who is violating the NAP here? Wenzel as the IP holder, or the third party? Ummm Wenzel. It may be against RW's wishes that the third party not continue to spread the secret, but his argument that he can actually restrict the speech of the third party amounts to nothing more than "it was my idea first." Ummmm so what? Having an idea first gives you the right to threaten others? How interesting.

      RW continues "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."

      Amazing, RW is comparing a theft followed by a voluntary sale (in the car example) to a voluntary sale, a breach of contract, followed by a voluntary sale (in the book example). Two voluntary transactions are not the same as a theft followed by a voluntary transaction.

      Everyone knows this, so the breach of contract is the focal point. How a breach of a contract between RW and B give RW rights over C (someone who isnt a party to the contract)? umm the truth is it cannot. A breach of contract does not retroactively turn a voluntary sale of the book into a theft. The sale of the book was still voluntary, there was just a breach of the terms of the sale of the book.

      Again, RW is claiming the right to restrict the speech of someone he is not in a contract with. Where does someone get these magical rights? Seems like if you come up with an idea, and you sign a contract with another person, that contract is broken, somehow the creator of that idea gains all sorts of rights and privileges over everyone else in the world (despite not having signed a contract with them).

      The truth is the third party does not need authorization to re print the book from RW. The third party never agreed to any restrictions with RW, yet RW is claiming that he can place restrictions on the third party against his will (RW is initiating violence or the threat of violence).

      Delete
    14. It's truly astonishing at times how someone can write pages of diatribe and say nothing of substance at times.

      I wish everyone could appreciate brevity.

      Delete
  17. I don't know about Drudge, but you've certainly figured out the formula for getting a lot of comments: Mention IP.

    ReplyDelete
  18. @Anonymous @ 10.13

    "The issues surrounding IP enforcement and ownership are very difficult, so what many of the anti-IP crowd has done is "thrown their hands up" over problems they see as unsolvable, de facto justifying theft as a result".

    CORRECT.

    ALSO, whoever said that the pro-BTC crowd is also the anti-IP crowd got it just right.

    Instead of these futile arguments (futile, because everyone is backing into their positions), I suggest a little spade-work into the connections between those two crowds...trace it out.

    Look at the boards of directors..
    Every bit of digging on the net is rewarded. Go back to old threads and be sure to save them in a place they can't be deleted. It's a jigsaw puzzle. Or, as the very valiant Pam Martens has written, it's a box of Matryona dolls..

    When you start digging, you'll see there's no time to be wasted in in-fighting.
    Every time I deconstruct a media psyop, I get hit by someone.

    Wipe off the spit and keep digging...and keep posting...anonymously, if you have to.
    But there's no time to waste.

    ReplyDelete
    Replies
    1. Yea, I like the anonymous deal because it removes characterizations based on name, "personality" issues, etc.

      It makes for cleaner debate, and I don't feel the need to attach my name most of the time to my thoughts and/or ideas when it comes to libertarianism in general. However, in my business, much of my income is earned on my intellectual property- :), and I don't give that away.

      Delete
  19. Robert Wenzel writes: "I think you guys are missing my point here when you focus on discovery relative to party C. To be sure, if party C was somehow complicit in the contract between A and B being broken, then party C might face damage charges. However, my focus is on party C AFTER the creator, party A, informs party C that he is unauthorized to reproduce the intellectual property in question, but fails to stop the reproduction."

    Mr Wenzel is correct in pointing out that the core of our disagreement revolves around party C, who is not bound by the contract. After all, both the pro- and anti-IP agrees on the sanctity of contracts.

    What I would like to read an answer to is this: given that no action by C in the past, present or future makes or made any potential action by A impossible, and given that C does not stop reproduction, how do you justify the initiation of violence by A against C?

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    Replies
    1. Thank you Alan. There is no justification. Debate over.

      Delete
    2. Alan,

      Here's is a clear case where the "C" is complicit.

      "C" schemes with "B" to gain said IP, perhaps even knowing that "B" is violation of his contract, but with the intention of claiming "self discovery" and hoping that no evidence otherwise will pop up.

      Very clearly, C & B have both conspired for B to violate his contract and more importantly, harm A via theft.

      Delete
    3. Anonymous 9:21:

      Thanks. I agree that if C encourages B to break the contract (in full knowledge of the existence of the contract), C is at least partially responsible for the contract breach and can at least partially be held responsible. However, this muddles the question. Suppose C does nothing to encourage B to break the contract and B breaks it anyway, entirely out of free will? In my view, C cannot possibly be held responsible or liable in any way. However, if you are in favor of IP, then you would argue in favor of the initiation of violence against C for using an idea which A came up with first, even though no action by C made or makes any action by A impossible.

      Delete
    4. "However, if you are in favor of IP, then you would argue in favor of the initiation of violence against C for using an idea which A came up with first"

      I don't agree with the above. You are stating a position that is not necessarily reflected by those in favor of IP.

      There might be times at which C is complicit clearly, and times where he has no liability and/or has caused no direct harm.

      Any reasonable discovery process in an arbitration setting would sort this out most of the time, that was why I used my example.

      Even further though, if there was ongoing damage by C as a result, would it not make sense that at least C is prevented in causing further damage to A if no direct liability is found? (and where that line is drawn is indeed "murky"- but that doesn't mean that we should discard the question and/or endorse theft, or harm)

      That being said, I'm glad you just clearly acknowledged a case in which C should be liable for theft and/or damage caused by him despite not being party to a contract he signed.

      Delete
    5. That's the point. There is no damage done by C. And yet you favor an intervention of the legal system, which boils down to the initiation of violence in the name of A.

      Delete
    6. "That's the point. There is no damage done by C. "

      You assume knowledge of each and every case? Did you not read any of the above?

      Delete
  20. @Alan.S,
    Suppose A sells the formula for Coca-Cola to B with a clause preventing disclosure. It's a sunny day and as B prunes his roses, he sings the formula and C walking past overhears. When C starts to make money from selling Coke and A sues then whatever we decide one party will suffer a gain and one party will suffer a loss. (A's loss is a loss of profit i.e. the loss of an income stream in future years. C's gain is an unexpected windfall even more remote than a lottery win.) A legal system should deliver justice. Should the loss fall on A who spent a long time creating a formula or C who put in no effort whatsoever?

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    Replies
    1. Thanks PH. We agree that a legal system should deliver justice, we just disagree what "justice" really means.

      Firstly, any arbitrary law that one could design will have a winning and losing party. Suppose, for example, there existed a law requiring everyone to wear a black hat at all times. Everybody loses, except for the hat maker. Suppose we get rid of that law. The hat maker loses, but everybody else wins. My point is this: just because there is a winning and a losing party, is not and cannot be a proper justification for any law.

      Secondly, what has C done to merit the violent intervention by the legal system? A mugger who steals your wallet makes it impossible for you to use that wallet; a killer who shoots you makes it impossible for you to use your body. C has done nothing of the sort. In fact, he has done nothing to make any action by A impossible. What claim does A have against C?

      You might argue that C has deprived A of potential profits. However, those profits were never A's to begin with as they had not been earned. You are arguing that ideas can be owned, not that potential profit can be owned. The latter idea is, if possible, even more ludicrous.

      Lastly, your question seems to inquire whether or not I think it's fair that A puts a lot of effort into the formula, while C does not. But consider a world without IP law enforcement. In this case, A would have to be stupid to trust B on a whim with a secret so vitally important that the existence of the company depended on it -- and B, in turn, would have to be an idiot to whistle the formula while pruning the roses -- precisely because there is no recourse to IP law. So yes, I think it is perfectly fair that C, the entrepreneur who does not undermine anyone's actions, engages in the marketplace of production and exchange and seeks a profit based on voluntarily offering people products against pay.

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