Some also argue that some form of copyright or possibly patent could be created by some kind of contractual tricks — for example, by a seller selling a patterned media (book, CD, etc.) or useful machine to a buyer on the condition that it not be copied. For example, Brown sells an innovative mousetrap to Green, on the condition that Green is not to reproduce it. (This is Rothbard’s example, from “Knowledge, True and False,” which is discussed at pp. 51–55 of Against Intellectual Property.)
However, in order for IP to work, it has to bind not only seller and buyer, but all third parties. The contract between buyer and seller cannot do this — it binds only the buyer and seller. In the example given above, even if Green agrees not to copy Brown’s mousetrap, Black has no agreement with Brown. Brown has no contractual right to prevent Black from using Black’s own property in accordance with whatever knowledge or information Black has. Thus, the contract approach fails as well. (See also Against Intellectual Property, pp. 45–55.)
This is from the article posted today. The problem with Kinsella’s approach to contracts is that it assumes the following: “However, in order for IP to work, it has to bind not only seller and buyer, but all third parties.”
Wrong, this is only a measure of how effective the contract will be based on how widely distributed the information is. The fact that a contract can be circumvented does not mean it has no value.
So information, which is what IP is, that is widely distibuted will be very difficult for the contract to have meaningful value, but closely held information or information that has narrower markets will be easier to have meaningful contracts. At any rate the decision to use contracts to protect information or processes should be left to the market and not to any pseudo Austrian dictator like Kinsella. To assert that people should be prohibited from using contracts to protect information is no less statist than the current IP laws.
I sincerely doubt Kinsella has ever asserted that people should be prohibited from drafting such contracts. He seems to merely argue the point that such contracts would be ineffectual and could not replicate current IP law.
So long as the contract doesn’t infringe upon a third parties right to dispose of his property. Once the information is traded by you for something else, the said information becomes property of the new owner. He may trade it at will with no repercussion.
You can sell your automobile at will? Why not the design for a water purifier that you sold to me?
You can sell the purifier without the blueprints, but if I reverse engineer it and build a replica you have no claim to my property. I engaged in the production effort. I used your Idea, but you sold it to me when you sold me the purifier. It is my property now. I can dispose of it as I wish.
If I came up with idea of the water purifier before you, but you got it to the market before me, do I have the right to claim your fortune as my own? Only if I patent it first? Ridiculous? I can build the same purifiers and enter the market myself, but I can not claim damages from you for stealing an idea. The same ideas come to different people at the same time all the time. Just observe your own social circle. How many times have you been thinking the same thing your friend was thinking. Who owns that Idea?
Then if contracts for IP are permissable then what is the problem? If it is only an issue of effectiveness then lots of contracts would be voided. To argue that all IP contacts would be ineffective. For example, trade secret contracts might easily be very effective.
Saan, it’s not unusual for software licenses to include provsisions about resale, from “like a book”(ie, uninstall the software completely before getting rid of it) to “no resale”; for transferable licenses, there’s always the stipulation that the new owner is considered a licensee as well. The effectiveness of this strategy rests solely on the legitimacy of clickwrap EULAs(admittedly, this leaves out the problem of selling the computer such that no installation is required on the part of the buyer).
“Intellectual property” isnt something you can have a right to because it isnt a scarce resource. If you listen to Iron Maiden’s Number of the Beast, then sing it from memory on the way to work the next day, you have not caused Iron Maiden (or the song) any damages, nor have you prohibited them or anyone else from benefiting from it. And it doesnt matter if you sing it to yourself or to other people, free of charge or for money. An idea is just an idea that is in your head.
But you can contractually agree that you will not share the information. I am only discussing contracts between two parties and not any third party restrictions. Can you make those contracts? That is the question. And if you can, then it defeates Kinsella’s arguements against intellectual property and the issue becomes enforceability and not a definition of property issue.
And if you can’t make those contracts then why not?
No IP is just information about something or how to do something. No action is required. What IP contracts restrict is what you are allowed to do with that information. That seems perfectly reasonable to me.
When people talk about IP they arent normally talking about contracts, they are talking about coercively enforced universal laws. You can contract to whatever the hell you want.
Let’s say I lease a hyperdrive to X with the contractual limit that it not be reversed engineered; if Y comes and steals it, he is free to publish diagrams that Z is free to use to build a competing hyperdrive since neither is bound by my contract(if X does the reverse engineering, Z is just as free to make a competing product).
You say “no action is required”, but in the very next sentence you use the word “restrict”.
An IP right is the ability to force other people to refrain from using their own property in certain ways. That’s an action. It is an action limited to certain technically specified circumstances but it’s still an action. Think of a speed limit. The actual numerical limit is information, but by itself the information (the technical specification) doesn’t mean anything. What matters are the threat directed at and the limitation imposed upon drivers. A speed limit is an action, an explicit threat. An IP right works the same way. The descriptions contained within a patent or copyright are just the details of the threat. What makes the patent a patent is the threat, not the description.
You can. I don’t think anyone is saying otherwise.
As another poster pointed out above, the problem with “IP contracts” is that they will usually be ineffective because you can’t bind third parties. If you have a situation where for some technical reasons you believe such an agreement can be effective then have at it. One cannot base a general philosophical justification for IP on the possibility of such contracts though.
I believe you misunderstood Kinsella. He’s not claiming contracts are not valuable in restricting information. Restricting information via contract is the bread and butter of the blackmailer after all, and can be incredibly lucrative for all parties involved. Instead he is claiming contracts cannot restrict information the way copyrights and patents do, by binding non-parties to the terms of a contract, and thus contracts between parties are inherently less valuable than copyrights and patents.
The reason for this is that non-parties receive no benefit from arbitrarily restricting themselves to the terms of the contract. If they do not restrict themselves then the contract, which restricts parties from using the information freely the way non-parties are allowed to use the information, loses value. Copyrights and patents were created explicitly to increase the value of a contract by restricting non-parties ability to use information.
That’s an obvious red-herring.
Fact: Exclusive ownership of non-corporeal objects cannot be protected in all cases without violating the NAP.
The point is that contracts can protect IP. So Kinsella’s arguement that IP is non existent or can not be protected is false. It is just a matter of effectiveness and is not contrary to any property rights question. Furthermore to the extent that a market exists for protecting information we might expect the market to develop mechanisms to do exactly that. Kinsella’s arguement in the end is just anti-government and not anti IP.
Ok I hereby declare that I homesteaded the information about how to produce the sound of the word “is” Actually I have a big list of other information that I have homesteaded, all regarding processes on how to produce sounds and cipher various words commonly known as english (I now start homesteading mandarin too ).
As this is now my property, I like to tell you that I would be very happy if you use the word “is” to your liking if you are going to pay me either a one time fee of $200 to my paypal account or .02 cents per use. Should you decline to pay, I will sue you for theft and IP rights violations.
Makes sense?
Don’t try to argue that there are many ways to produce the word “is”, there are not, and I won’t accept that you argue that this word is in the public domain, it was there, I agree, until I homesteaded it.
Just to make sure you understand what great deal I offer you with this minor fee, let me tell you that by october 2009 I will charge a cent for even every thought that has the word “is”, or any of the words I homesteaded, in it. "Is"n’t that great?
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