Well, I’d be fine with any kind of restitution as based upon transfer of alienable rights in the default clause. Probably there would eventually arise some sort of custom on the matter, like how medieval performance bonds were usually double the original amount paid. I don’t see how making someone pay you for each copy of a book he failed to keep from being copied would be so offensive; restitution is more of an art than a science anyway.
But the problem with this kind of common law copyright is that it doesn’t specifically deal with tangibility. I can understand that one has the right to keep one’s car from being dented, but one doesn’t have the right to the value of one’s car, as the value of one’s car is not tangible (it is ideal.) Likewise, a right to keep one’s car from being copied does not deal with the tangibility of the object but its infinite ideal form which cannot be occupied by anyone.
I really don’t see how copyright is antithetical to a free society, which is built on property rights. IP is property, just like land or chattels, and allowing this legal protection is going to be a lot more efficient than requiring writers/artists to squirrel away and hide their work, protecting it through almost entirely unenforceable contracts.
Also, once the work HAS been copied, in violation of that contract, the next person who copies it from the copier, and the next person… etc. down the line will all have to become the responsibility of the person who originally breeched the contract (if we are to properly compensate the author’s loss), meaning that the one person who didn’t manage to protect his purchase from illegal copying could be responsible for millions or billions in damages.
Intellectual property is ONLY going to become more important as the western world moves beyond the industrial revolution and our economy becomes more and more of a service/information economy. By eliminating IP rights, we would risk stifling development.
I’m not advocating that the author retains any kind right to the IP. IP is an idea that exists only in someone’s mind and is therefore not copyrightable. Once it’s out of the bag, that’s it. What I’m saying is that there is a qualitative difference between 1) the IP (or the idea), 2) the particular sequence of letters on the page (the creation), and 3) the paper and ink (the physical manifestation of the creation). And that a book consists of these three things.
Even though the idea is not copyrightable, it seems to me that the particular sequence of letters on the page can be copyrightable, without invading anyone’s property rights, so long as it’s spelled out beforehand who owns what.
But how will you know who did it?
If you see a store selling your book, and the owner won’t tell you who gave him the book to copy, you are just stuck. The problem does not lie in how you deal with those with whom you have a contract but in how you deal with those with whom you do not have a contract.
But it does invade my property rights. I own paper and I own ink and you want to tell me there are things I cannot do with this property.
The purpose of IP is to generate profits by creating an artificial scarcity - basic supply and demand right? But ideas exist in people’s heads and there is no way to sequester them there. The only way to make an idea scarce is to restrict how people use the physical property needed to instantiate it. This is, for me, the key to the debate. Intellectual property rights operate by invading the physical property rights of others. There is no other way to make an IP regime function.
Yes. I am telling you there are things you cannot do with it, so long as it’s contractual. What’s so wrong with ascribing to a particular property tangible and intangible attributes, and delineating beforehand that some of the intangible attributes are retained by the original owner?
If intangible attributes cannot be retained, then this raises a lot of questions. For example, are easements on real property enforceable? Or how about the kind of restrictive covenants placed on property by homeowner’s associations? I see a free society as a contractual society. Regarding property, I say that anything goes so long as two parties agree to it. Now I understand the concern that some here seem to have of transferrring the provisons of an original contract to subsequent owners, but I think this can be solved as follows:
The original contract stipulates that the new owner’s right to the property excludes certain intangible attributes, and furthermore, that should he wish to transfer the property to someone else, he may do so only if he ensures that the subsequent owner agrees to being a party to the original contract.
“Ensuring that the subsequent owner is a party to the original contract” does not mean that the transferror is liable if the subsequent owner should violate the terms of the contract. It simply means getting his agreement, implicitly or explicitly. In the case of copyright this could mean nothing more than ensuring that the copyright label is not removed.
In my previous post I said that ideas are not copyrightable, because they exist only in the mind. I agree with you there!
However, I draw a distinction between an idea which exists in my head, and the actual sequence of letters on the page. I can’t prevent others from copying my idea, but if I restrict you from copying the exact same sequence of letters, I am not restricting you from copying my idea. There are an infinite number of ways of instantiating an idea. I’m just asking you not to copy my version. For example, if my name is Daniel Defoe and I have an idea for a novel about a man that gets stranded on a desert island, I can’t stop you from writing a similar novel based on exactly the same idea. But if your novel copies mine word for word and is called “Robinson Crusoe” I say I can stop you from doing that without restricting the idea or making the idea scarce.
Absolutely nothing. As long as you can somehow track what someone is doing back to a contractual agreement then I have no problem with your argument. Where I think we are talking past each other is on the question of third parties who will not cooperate. This is who the offenders will usually be - think about bittorrent. In order to maintain a copyright regime you have to invent a right to restrict the property rights of these third parties even though you do not have a contract with them.
Understood. But how do prevent me from copying your version if I decide to ignore your wishes and we have no contract? By restricting my use of my own property. There is no other way to do it. I am arguing that this makes copyrights illegitimate.
Nothing. The main problem is third parties, the people doing the pirating.
This assumes from the start that ideas are ownable.
Property is nature mixed with labor. We need property rights because when demand exceeds supply there is potential for disputes. With intectual “property” (irony quotes) there is an infinite supply, me owning a digital copy of the Mona Lisa does not exclude anyone else from owning a digital copy. It is only the original painting that is controlled by property rights.
Believing that the creator of the Mona Lisa should be paid by anyone who copies it, regardless of the existance of a trade arguement, is price fixing.
That is not a proof, you’re just explaining your beliefs. Why can’t you stop him from “stealing” a plot, but you can stop him from “stealing” a character or story? Whats the difference?
Leonidia,
The concept you are trying to wrap your head around is called privity. It is part of the traditional English Common Law, which in some ways is a rough proxy for natural rights or the natural law, particularly where it concerns property rights. One’s private property can only be confisgated in two situations:
(1) By consent (directly or indirectly, such as pursuant to a voluntary submission to an authority)
(2) By violating the natural, categorical or customary property rights of others, assuming the confisgation is proportional.*
In the situation you described, the contract is only between A and B. B promises not to copy or distribute the book. A and B promise that if B does distribute the book, C will pay. But C doesn’t sign the contract. Therefore, C does not fall under #1. Second, C cannot fall under #2 because, as discussed before, there is no natural right to an idea or expression–it does not inhere in either basic goods, the intuitive structure of life and free choice, or our axiomatic self-ownership.**
Instead, A’s remedy would be all damages caused by B as a result of the distribution, but only if it is in violation of an express term of the agreement. At some point, B won’t want to be liable and won’t sign such an agreement, so A & B will negotiate terms among thousands of other A’s and B’s, until the market adopts a general risk balance between writers and consumers (where both A & B make sacrifices to make it worth both parties’ while to write books and enjoy them). Furthermore, to the extent people use DRO’s, such organizations will almost certainly include the “pledging” of a significant portion of one’s assets – i.e. the DRO may very well be your bank. In which case, buyers and sellers are more willing to deal with one another, as a neutral 3rd party already holds the funds you would want to confisgate in the event of a breach of agreement.
*A proportional right to confisgate property must be tempered by the amount of damage or chaos one might cause in attempting to enforce such a right. The need to invade someone’s house to steal a television because someone owes you a debt would probably render a response disproportional, at least to the extent it risked a basic objective good, like someone’s life. However, as discussed above, the market is able to avoid such qualitative quagmires with clever solutions applied to the front-end of a transaction; culture, particularly Christian culture, plays a part in providing for more humane debt collection. Even modern collectors will engage in safer tactics (like repossessing a car in the middle of the night) to remedy a debt.
**Of course, the following only concerns C’s obligations as a matter of justice. If C knew of the contract between A & B, he may feel obliged as a matter of charity to respect A’s desire for payment and shortsighted distribution of his work without other protections. In fact, in the real world, many people’s decisions are based on charity and goodwill rather than mere justice, despite the common confusion of the two concepts.
But I think I do have a contract with them, an implied contract, and I don’t think I have to invent anything. Under the common law, an implied contract is an agreement which is not formally written down, but is created on the basis of the behavior of the parties involved. If a third party is aware that in order obtain a particular product certain restrictions apply, then by obtaining the product he gives his tacit approval to the restrictions. He has, in effect, agreed implicitly to a contract with the original owner by virtue of the fact that he’s obtained it. Of course he has to be made aware, which is the purpose of the copyright mark.
As I said, I think we do have a contract, and there is no restriction on the use of your property insofar as what you actually own. When you obtained your property, your property never included title to the intangible part of the property that I’m retaining for myself. You understood that to be the case, and agreed to it under the terms of an implied contract with me. If you attempt to use the intangible part of the property that I retain title to, you are violating my property rights.
Exactly. Also, DROs may also wish to give social sanction to C; after all, a DRO doesn’t want its client (B) to get into trouble, and might take a number of measures to discourage C from causing B to break his contracts (such as charging higher premiums on C.)
It is the implied contract that you are inventing. To be legitimate contracts must be voluntary.
Suppose I bought my paper and ink before you wrote your book. Now where does your intangible right to my property come from? Are you saying that just writing a book somehow automatically creates a previously non-existent right in everyone else’s property and assigns it to you?
So in a free society, there’s no such thing as an implied contract?
No, of course not. I don’t own your paper and ink and never will unless you give it to me. But if you use your paper and ink to steal my intangible property, you’ve still violated my property rights. I wrote the book; the paper and ink were the burgler’s tools used to take it from me.
I have a quibble with that definition. I think it’s OK to own some pristine woodlands if I want to and can afford it.
Property is any thing that is both scarce and in demand. The air is not property because it is not scarce, though it is in demand. A deadly virus is not property because it is not in demand, though it may be scarce.
I think the more proper definition is that property is something that has been created by first-occupancy (which is visible and just), rather than through mixing labor (this is only a minor quibble though.)
I don’t have a problem with that at all.
But what if B promises to A that if B sells his book to C, he will make sure that C is a party to the original contract between A and B? In other words, in the event B sells his book, he may do so only if he extracts an agreement from C not to copy or distribute it.
When you say “implied” what you mean is involuntary. How can there be an involuntary contract in a free society?
But to make that argument you first have to show that there is such a thing as intangible property. I claim that to create intangible property one has to invade the rights of others to their tangible property. So there can be no legitimate intangible property.