Sunday, March 23, 2014

More Evidence That Anti-IPers Are Not in Touch with Reality

As part of my post, Mick Jagger: Pro IP, I ran the famous Rolling Stones tongue logo.

In the comments section, the anti-IP crowd has gone nuts. Commenter Bob Finley wrote:
Are you paying him anything to display it on your blog?
From an anonymous commenter:
  Awesome comment Bob Finley. I would really like to hear Wenzel explain this one.
Another adds:
 are you implying that stealing is ok as long as the amount is small?
Tony chimes in:
 That's a nice rationalization for the FACT that regardless of whether Jagger would mind or not, or whether it is about a big sum or not, Wenzel DID IN FACT use a logo to which he has no rights, without asking for permission. This is the case for ALL information that someone uses that he gained from third parties without asking for the right to do so. After all, ideas are property, are they not?
And yet another anonymous commenter:
If Jagger owns the logo, what is it doing on your blog?
Intellectual property is not property, you can't own it. Ownership implies scarcity.
You are assigning property rights to knowledge, which is not a scarce resource
First, even if my use of the logo is theft that does not disprove the concept of IP. It, duh, proves IP thievery. However, in running the logo, I made a business decision, which could be right or wrong, that Jagger really doesn't care about my using the logo in the context of a news story. If I am wrong, I am sure I will hear from Jagger's lawyers soon enough.

As another commenter pointed out, people often use the restroom facilities at hotels at which they are not staying. People who use such facilities don't check with the owners, or their lawyers, before using such toilet paper. They don't draw up a toilet paper use contract before going to the bathroom. Is it theft to use the toilet paper in such a restroom? The idea is absurd. Although technically in a libertarian society, a hotel could press criminal charges. The person using the toilet paper is making the very reasonable assumption that the hotel doesn't care about the toilet paper use and that it is idiotic to go out of the way to ask permission. I view the use of the Rolling Stones logo for a news story in similar fashion. This does not mean all use of the logo or all use of materials in a hotel would not raise objections.

If in a hotel, instead of just using a few pieces of toilet paper, an individual goes into the hotel storage closet and takes out two dozen rolls of toilet paper, as he is walking out, he may be stopped by a hotel employee. If instead of using the Rolling Stones logo in a news article, I produce thousands of baseball caps with the logo, then Jagger's lawyers are very likely to pay attention and stop such efforts.

Does Jagger have full rights to the logo? Absolutely. Does he care about my use of it in a blog news story? I doubt it. If he does, I am sure, as I said, I will hear from Jagger's lawyers and they will request that I take it down and I would then take it down, because Jagger DOES have rights to the logo. But my guess on this, and I could be wrong, is that Jagger cares as much about this use as the Ritz Carlton cares about someone butt wiping with their toilet paper.

In failing to take all this into account, anti-IPers once again have demonstrated an inability to understand the complexity of the world and the nuances of ownership and the fact that owners may notcare about protecting their intellectual property under all circumstances. This doesn't mean that the intellectual property isn't owned or that an owner could enforce restrictions on all uses. It just means that in some cases the owner may not care. Anyone assuming that an owner will not care under a given circumstance is taking the risk that the owner does care and will act to enforce the IP rights, in the same way that a person not staying at a hotel takes the risk that a hotel might call the police and press charges against someone who wipes their butt with a few pieces of hotel toilet paper. Yeah, it could happen, but it is absurd to think it will and it is even more absurd to think that a hotel doesn't have ownership rights to all its property, just because it doesn't clamp down on those who might use a few sheets of toilet paper.



32 comments:

  1. Some people need to see that old post about Mises Institute parking lot security.

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  2. You just displayed the "contexuality," "thickness," and "humanitarianism" that anti-IPers claim is wanting on the pro-IP side, and the anti-IPers just showed the"fundamentalism," "brutalism," "thinness," "legalism," and "literalism" they claim only belongs on the other side.

    Tut-tut.
    What a mix-up. Need to keep that black-and-white thing going, or we might develop some brains....

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  3. "More Evidence That Anti-IPers Are Not in Touch with Reality" or, stated differently, they are ignorant of what IP actually is. I see time and time again in their posts a general lack of understanding of IP and scope of law (in principle and in practice). Whether this is ideologically-driven willfulness or genuine ignorance, it's hard for me to tell.

    In principle, the IP holder should have to prove in court he has suffered financial harm from the unauthorized use of his IP. The financial harm could be from confusion created by too similar a logo design or to sell knock-off products using the logo, etc.

    With respect to the EPJ article using the Rolling Stones logo, no harm no foul should prevail. If Jagger objected, the burden should be on him to prove in court that EPJ caused financial harm and the limit of his claim against EPJ would be damages plus legal fees to make him whole. This would be the just outcome. How much financial harm did EPJ cause Jagger by using his logo? $0? Again, no harm no foul. The very best the court could do for Jagger in this case would be to issue a "cease and desist" order to RW.

    Whether that's how the law is is a very different question than what IP law should be. But that there should be IP rights at all should not be in question among libertarians anymore than physical property or self-ownership rights.

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    1. A leading anti-IPer Stephan Kinsella is a practicing IP lawyer. I bet he knows the ins and outs of it much better than any pro-IP guy here.

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    2. Hee hee. I suppose the last guy I'd ask to represent me in an IP trial is someone ideologically opposed to the entire enterprise. But your point is a fallacy of course (appeal to authority). Obama is a constitutional lawyer... how's that going?

      I've produced a lot of IP. Written articles, wrote and now hold a patent for an engineering concept and am a software developer. I guess that makes me something of an expert too.

      IP law isn't meant to serve and benefit lawyers (much to their astonishment I'm sure) but the people who actually produce it and for the people who benefit by it.... the consumer.

      But the IP debate isn't about the legal minutia of IP that I'm sure Kinsella does have expertise. It's a philosophical debate over what IP is and why should IP rights be recognized in law. That's an area that Kinsella apparently hasn't spent much time considering...

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  4. IP is a state issued grant of monopoly privilege. The duration of privilege is arbitrary. The economic effects of a monopoly are well known.

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    1. All the more reason to develop a free market anarcho-libertarian framework for IP laws.

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    2. Private property, land, natural resources and self ownership are state-granted monopolies of privilege. So you must be against those things too... So basically, you're against human civilization or as RW put it, "not in touch with reality."

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    3. Rick a free market framework for IP would be like a free market framework for drug prohibition, impossible. Because enforcing IP necessarily means stepping out of the bounds of the NAP and aggressing upon people. You may 'like' to do it, many people like to commit all sorts of acts of violence on others, but that doesn't make it right.

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    4. @Dave - "Because enforcing IP necessarily means stepping out of the bounds of the NAP and aggressing upon people."

      No more so than using aggression to remove a squatter from your land or against someone wanting to cut your hair against your will. The squatter hasn't used violence against you and you regularly get your hair cut without going to the emergency room...

      Again, this demonstrates ignorance of IP. When you buy software for instance, by installing and using it you agree to the terms of the EULA. It just so happens that copyright is a state-sponsored convenient equivalent of EULA. A EULA could accompany every book and have the same effect. That by buying or using the book, you agree not to copy it.

      Through copyright, trademark and patents, the state is acting as a repository of "end-user licenses" effectively. No different than a title for land or car which grants the exclusive right of ownership to the holder.

      If anything, you should be much more against monopoly of private land ownership because land is scarce. Why should you be granted exclusive use of land when there is scarcity of such a necessary resource? Why should you be able to use force to evict a stranger who is peacefully occupying your couch?

      The right of IP is limited in scope to only the IP itself. The IP holder does not obligate you to do anything other than not to distribute or copy it. So, you must perform the positive act of copying the IP to violate the IP holder's right.

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    5. Plenarchist, I really don't see how your argument follows.

      Private property, land, natural resources, and self ownership are NOT state-granted monopolies of privilege. They are the natural state of things; they are principles that stand independently of any government. The state may selectively choose when to protect or enforce those concepts but that doesn't mean that the concepts themselves flow from the state. Just because the state decides whose rights get violated and when doesn't mean the state created those rights in the first place.

      The recognition of intellectual property rights necessitates the initiation of force against nonaggressors; it requires that you use force against people that are using their own property in nonviolent ways. Property rights are a function of material scarcity; of the idea that two people cannot simultaneously make use of the same matter in different ways or for different purposes. There is no such limitation in the realm of IP; my use of a song does not preclude your own usage of it. My theft of your car DOES, and that is why there must be a property title assigned to the car.

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    6. Dave-

      In the current framework IP is totally government controlled, and rife with inconsistency.

      In a free IP system, each commercial use would be governed by "free" law. "Fair Use" would exist, but commercial use would be governed by contracts. There is no inconsistency between a private contract system and IP.

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    7. "It is sometimes argued, in response to attacks on patents as monopolies, that "all property is a
      monopoly." True, as far as it goes; but tangible property is a monopoly by the nature of the case. A parcel of land can only be occupied and used by one owner at a time, because it is finite. By nature, two people cannot occupy the same physical space at the same time. "Intellectual property," in contrast, is an artificial monopoly where scarcity would not otherwise exist. And unlike property in tangible goods and land, the defense of which is a necessary outgrowth of the attempt to maintain possession, enforcement of "property rights" in ideas requires the invasion of someone else's space. "Patents... invade rather than defend property rights.""

      -Murray Rothbard.

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    8. "Because enforcing IP necessarily means stepping out of the bounds of the NAP and aggressing upon people. "

      The irony on that statement is the refusal to acknowledge that those that feel IP is property can make the same accusation on those steal it.

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    9. @ Mella

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

      "We have seen in chapter 2 that the acid test by which we judge whether or not a certain practice or law is or is not consonant with the free market is this: Is the outlawed practice implicit or explicit theft? If it is, then the free market would outlaw it."- Murray Rothbard

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    10. @Anon 3:43 -

      >> Private property... They are the natural state of things; they are principles that stand independently of any government.

      On what basis? Lockean theory of property? His definition applies just as equally to IP (labor mixed with resources). The only distinction aIPers make is that IP isn't scarce which is an economic argument - not a natural rights argument - and they're wrong on that point as well. I argue that IP is covered under the same umbrella. Economics though is descriptive - not prescriptive (a salient distinction missed by many at Mises.org).

      >> The state may selectively choose when to protect or enforce those concepts but that doesn't mean that the concepts themselves flow from the state.

      Which no pIPer argues. What is generally meant by "state-granted monopoly" is that the state will use force in defense of the right - not that by fiat the state has somehow justified it. Stateless ancap AIPers assert that they have a right to use force to protect their physical property using a private defense agency. They also believe that even though the state maintains a monopoly on use of force, it should still protect their property rights. The same argument holds for IP. Doesn't matter if the IP is protected by the state or a Blackwater.

      >> Just because the state decides whose rights get violated and when doesn't mean the state created those rights in the first place.

      Which pIPers aren't arguing per above.

      >> The recognition of intellectual property rights necessitates the initiation of force against nonaggressors; it requires that you use force against people that are using their own property in nonviolent ways.

      They aren't using their own property. They are using another person's property (the IP holder) under a license (ie with permission). Owning a pile of paper is not the same as owning the content contained on the paper.

      >> Property rights are a function of material scarcity; of the idea that two people cannot simultaneously make use of the same matter in different ways or for different purposes.

      Again, economic argument is irrelevant. And as RW has argued at EPJ in the past, ideas are indeed scarce. What makes ideas nonscarce is the person's willingness to copy them. That's akin to saying your inattentiveness to locking the door to your house justifies someone stealing your TV. Ease of action doesn't equate with right to do so. This is the difference between "can do" versus "should do"...

      >> My theft of your car DOES, and that is why there must be a property title assigned to the car.

      It's the same only different. By stripping the IP producer of his or her profit from the IP, you have in effect stolen the car, clothes, etc etc they could otherwise have bought. You are robbing them of the value the market would otherwise reward them for the IP. And in doing so, remove the incentive for producing the IP in the first place.

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    11. @Mella999 - "... True, as far as it goes; but tangible property is a monopoly by the nature of the case. .... Patents... invade rather than defend property rights."

      Rothbard was wrong on a number of things and this is one. How he defines property is based on an economic principle - not Locke. Scarcity is not a quality of property. The act of mixing one's labor with resources is which includes IP.

      And as RW has pointed out on EPJ, ideas ARE scarce. How many people independently arrived at e=mc^2? One? Pretty scarce if you ask me. Just because an idea is readily copyable doesn't mean it's right to do so.

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    12. For clarity here, "state-granted monopoly" is better stated as "state-recognized monopoly"... Rights aren't granted by the state.

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  5. My father was a franchisee for McDonald's corporation years ago. One day he walks in and sees a woman who had taken the top off of one of the drinking straw dispensers, and was proceeding to unload the straws (hundreds) into her purse. When my father approached her and inquired as to what she was doing, she informed him that her son had a school project and needed straws for it. When prompted as to why she didn't go and buy some straws, he was informed that since McDonald's gave him the straws for 'free' (obviously not true), she didn't see any reason as to why she should have to go and pay for them.

    This illustrates a number of things, not the least of which is how ignorant most people are as to how a business operates. But it also goes to the point that Robert was trying to make.

    McDonald's offers straws, napkins, bathroom facilities, etc., for paying customers to use, and knows that, to a degree, other non-customers will take advantage. Sometimes people cross a line, however...The woman put the straws back, btw, and was very irate about having to do so.

    Another example would be people who throw their personal trash away in other's trash facilities. Sometimes this is a gray line. A gas station has trash receptacles next to the filling equipment. It is pretty clear that they are okay with people cleaning the trash out of their vehicles and using the receptacles. More unclear is when people clear out their vehicles and use the receptacles at a McDonald's. Crossing the line; however, would be taking your bagged trash from home, driving to the McDonalds, and putting it in their dumpster...Yep, happens all the time...

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    1. Followup to McDonald's Free-Beez:

      I coached HS football for many years. Every Friday before a game, various coaches would "raid" a McD's for ice and, especially, cups (The small "Courtesy Cup" variety). Eventually, all of the grabs for "Free" cups from ALL of the County teams led to an informal policy change. The Franchises called all of the High Schools in the area and stated that the HS teams would hereinafter have to buy their own cups and ice. It was at the level of "Noticeable Costs".

      There may be a Nobel Prize for Game Theory in this idea but eventually, McD's got their "Extraneous Costs" under control - and forced many an assistant coach to go to a Save-Mart to get cups and ice before the games.

      CW

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  6. Umm, the Law itself, which creates IP, provides exceptions to the absolute dominion for uses such as discussions or news or satire or a whole host of things. You are using it as your logo or for economic gain in the sense that you are using the logo as part of an effort to earn profit so I do not see what they have to complain about.

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  7. Mr. Wenzel, I argue that IP enforcement does not work at current levels, or at any level. The extent is simply making examples of certain high profile cases to scare all other potential infringers. Ask any angry book author, music artist or movie studio if their IP is actually protected under current laws. What level of government and invasion of privacy will be needed to police the IP anarchy that currently exists? The most powerful secret organization can't even protect their own secrets, how are they to police others?

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    1. No pro-IP libertarian is likely to argue current law is ideal. But you say "at any level" and I say that's simply not true.

      "The extent is simply making examples of certain high profile cases to scare all other potential infringers." Which is a rightful strategy. No problem.

      But more importantly is for IP holders to take legal action against large-scale distributors. This is where the IP holder is experiencing the greatest financial harm.

      "What level of government and invasion of privacy will be needed to police the IP anarchy that currently exists? The most powerful secret organization can't even protect their own secrets, how are they to police others?"

      This is an argument against the system as it is - not against IP.

      Does the state proactively protect your land or home from trespassers? No? The burden of securing your property from theft should be yours alone. The state shouldn't intervene unless you accuse someone of trespassing and can then prove in court damages you might have suffered. IP should meet the same standard. The burden is on the IP holder.

      It shouldn't come as a surprise to any libertarian that the current state would abuse IP law (like it does in every other aspect of our life). Again, that isn't an argument against IP but the current state.

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  8. There is a question that pro-IP debaters never answer: if IP law protects you against some kind of loss, what is it that is yours, which you lost? If it isn't yours, you can't lose it. If it is yours, what is it?

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    1. Of course pIPers do answer that question but aIPers pretend not to hear it.

      What is "yours" via IP is your idea in the form of words and symbols. A thing which exists via patents, copyright and trademark that becomes legal property ie through some kind of title. By your definition, your mind doesn't belong to you either...

      This is no different than with other types of property. There have been, are and likely always will be legal conventions that establish what's yours in a society. Is your car yours? Can you prove that it is? Your land? Your TV? With all these types of property, ownership is established through some legal convention. Same holds for IP.

      Your post is yet another example of willful or stubborn rejection of something that is as obvious as the nose on your face. Anything... ANYTHING that can be described with words can be defined as property. The Sun could be titled to someone and one day might be...

      Property is not limited by what it *can* be but by what it *should* be. And IP should be...

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    2. Or to put this more clearly, "property" isn't really the thing itself. Property is *title* to the thing as accepted in some legal context. It is a legal concept.

      This is something aIPers don't seem to get. Property is not the thing. It means to "have property in something"... It is the legal mechanism by which title is conveyed.

      You may believe your car is yours but unless you have some means of proving it, it isn't going to be regarded as yours. You might be driving around in a car you think is yours, but if someone else holds the title, it's his car... The same is true for ALL property. The property is yours only to the extent you are able to prove it.

      In order to establish title, the thing must be described with words and symbols. And since IP is itself words and symbols, title can be created for it (currently as patents, copyrights and trademarks). Anything... ANYTHING imaginable and expressible in words and symbols can become property. The operable word here is "should" - not "can" it be property. And IP for many reasons should.

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    3. Obviously, you are NOT answering the question posed. It asked what you lost. Your answer is your idea. And clearly, you didn't lose your idea and you haven't answered the question. You then go on to insult the motives of anti-IP debaters.

      Word-gaming property won't do either. Like most Pro-IP debaters I have observed, you are insulting, evasive, and a word-gamer. You twice repeat that IP "should" be property, but the Anti-IP position is not that it "shouldn't", but that it can't be. The IP position has nothing to do with property. It has to do with a coercive monopoly to stop imitation (otherwise known as learning by example). Word-gaming is the heart and soul of the whole position.

      JH

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    4. Lecturing about the subtleties of the word "property" and then announcing what "should" be considered property, is called irrelevance and begging the question.

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    5. Anon@12:03 - I did answer the question. You refuse to accept it. What is lost is the IP producers exclusive use-right of his idea and whatever value with it.

      And I don't insult aIP motives. I just point out an obvious truth that like all people who want to claim other people's property, they want to have something they haven't earned. They want to be cheaters.

      "The IP position has nothing to do with property. It has to do with a coercive monopoly..." Like all aIPers, you are a hypocrite. You expect to have a coercive monopoly on your person, your land, your possessions. What gives you the right to initiate force against someone wanting to borrow your car or someone resting on your couch without your permission when you aren't using them? Don't you expect someone (the state or other) to use force to protect those property rights? IP is no different. Ease of trespass doesn't justify trespassing.

      Anon@12:07 - There are no subtleties. IP satisfies Locke's definition of property as labor mixed with resources. Property doesn't exist in nature. You don't see "property" walking around or taking any physical form. The idea of property is an abstraction. It's an invention of the human mind for the purpose of producing a more civil society. So by definition it is a "should" question and IP should exist for the sake of justice as should other forms of property like your car, house, person, possessions and objects of value you have earned.

      When you purchase a book, you own a pile of paper and ink - not the words. But the value of the book is not in the paper and ink - it's in the words. You would deprive the author his or her rightful claim as owner of the words by stripping away IP rights. I find that grossly unjust that would make IP producers not want to produce and the world a crappier place to live. No thanks.

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    6. [Anon@12:03 - I did answer the question. You refuse to accept it. What is lost is the IP producers exclusive use-right of his idea and whatever value with it.]

      You beg the question by claiming it is "his" idea. Once he has revealed the idea to others, it is their idea as well. He cannot own what is in the minds of others. Originating an idea does not equal owning an idea. You are claiming a right to a coercive monopoly. Property has nothing to do with it. Cornering the market is the issue. Controlling other people and THEIR property is the issue. If you want exclusive use of an idea, keep it secret. If you make it public, it is no longer exclusively your idea.

      JH

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    7. Plenarchist libere vivimusMarch 24, 2014 at 1:03 PM
      "Your post is yet another example of willful or stubborn rejection of something that is as obvious..."

      That is insulting and implies that anti-IP debaters secretly agree with you and are just to mean to admit it. Dream on, wise guy.
      JH

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    8. Plenarchist libere vivimusMay 8, 2014 at 1:21 PM
      "And I don't insult aIP motives...
      they want to have something they haven't earned. They want to be cheaters.
      Like all aIPers, you are a hypocrite."

      So...those aren't insults, right? You appear not very skilled at the precise use of words.


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