I think we’re going in circles now. You have accurately described your theory of IP-as-reserved rights but that does nothing to counter my assertion that digital reproductions don’t necessarily leave any evidence that your property rights have been violated other than the copied pattern. Since you disavow that the pattern itself is the property then finding a copy of the pattern of letters in your book somewhere is not, in itself, evidence that your property rights have been violated. After all, you could have given the manuscript of your book to a friend without any formal contractual agreement and he may have copied it and distributed it and you would simply be lying if you said that I violated your property rights by possessing and distributing that copy. If the courts ruled in your favor in such a case, they would be violating my property rights. You are presenting a completely one-sided view of the problem of establishing the case in fact in a court of law, as if, only the plaintiff need present his or her side of the story and that settles the matter. Unless you can prove with reasons and evidence that I most likely did violate your reserved rights, for you or the court to initiate force against me is an act of aggression.
I think your theories of law and property rights are ad hoc. You seem to be “shooting from the hip” here. While I agree that it is conceptually possible to define intellectual property as “reserved rights”, you still have to deal with the problem of enforceability. Unenforceable rights are no rights at all.
I think we’re going in circles now. You have accurately described your theory of IP-as-reserved rights but that does nothing to counter my assertion that digital reproductions don’t necessarily leave any evidence that your property rights have been violated other than the copied pattern. Since you disavow that the pattern itself is the property then finding a copy of the pattern of letters in your book somewhere is not, in itself, evidence that your property rights have been violated. After all, you could have given the manuscript of your book to a friend without any formal contractual agreement and he may have copied it and distributed it and you would simply be lying if you said that I violated your property rights by possessing and distributing that copy. If the courts ruled in your favor in such a case, they would be violating my property rights. You are presenting a completely one-sided view of the problem of establishing the case in fact in a court of law, as if, only the plaintiff need present his or her side of the story and that settles the matter. Unless you can prove with reasons and evidence that I most likely did violate your reserved rights, for you or the court to initiate force against me is an act of aggression.
Yes, if I just willy nilly gave him a copy of the book without any sort of rights reservation, he would be able to copy it. But assuming I have sufficient documentation that I never let out any such manuscript without reserving rights, that would, I suspect, be sufficient to lay the burden of proof on the opposing party to prove they indeed did not use my property in order to copy it. But that’s not for me to decide so much as it is for judges to decide.
I think your theories of law and property rights are ad hoc. You seem to be “shooting from the hip” here. While I agree that it is conceptually possible to define intellectual property as “reserved rights”, you still have to deal with the problem of enforceability. Unenforceable rights are no rights at all.
Clayton -
My theory of rights is that I, as the person who owns a right can give the right or any particular portion to anybody else I please (assuming they accept it). It is not ad hoc, I’m just taking that statement and applying it to this particular situation. I’ve held that view long before I ever thought about intellectual property. The reason I defend reserved rights is not because I’m glad people can stop me from copying their property, it’s because I want to defend that theory of rights.
Now my theory of how to actually enforce those things is much less rigid, and I leave that up to the market. I don’t know exactly how to prove or disprove certain things and that’s up to the free market courts, judges, and possible professional juries. So no, I don’t have the problem of enforceability, that’s entirely up to the invisible hand. But I have made suggestions as to how that might occur.
By the way, any court could be wrong, and enforcing their decisions would lead to rights violations. So there is never going to be no rights violations. It’s just the amount of acceptable risk and certainty the courts have when making any case. Is it likely enough that somebody who has a book with the exact same letters in the same order as mine used my property to create it? Is suspect so, unless they give reason to think otherwise.
I think we look at rights slightly differently. I see rights as something that emerges from law (customary law, not statutory law). I don’t think it makes sense to speak of “owning” a right, ownership is defined by rights (law).
That’s commendable, I deplore the partisan tone of discussion pursued by some of the other posters here. Unflinching intellectual consistency is a rare bird.
Well, this is where our difference on rights becomes important. I think that the ability to force (as in, physical force, violence) others to respect one’s rights is an integral part of the story of how rights emerge in the first place. There’s no incentive for an overwhelmingly powerful party to go to court to resolve his disputes, he can simply kill anyone that gets in his way. Dead people, clearly, have no rights. People who are afraid of dying don’t claim the rights they reasonably believe they have by virtue of being human beings because they prefer being alive with few rights to being dead (and having no rights).
This means that power imbalances matter to what rights can and will emerge.
Enforceability is a corollary to power. If I am impotent, I cannot enforce rights even if courts acknowledge those rights (again, I am speaking of natural order society, not the law-monopoly society we currently live in).
Whether intellectual property via reserved rights is a viable legal theory of rights in a natural order society will crucially depend on whether those rights could even be meaningfully enforced. So, enforceability matters.
E. R. Olovetto wrote the following post at 04-22-2010 12:20 AM:
“Property rights can only apply to scarce things. When you start creating pseudo-rights in non-scarce things it causes property rights conflicts.”
Nope. Review economics.
Example:
I can own some surplus air or some surplus salt water. I just won’t pay any attention to it, until it becomes scarce. No one else will either. But once scarce, my foresight in owning it was rewarded, as people will want to buy it from me for more than I value it.
Example:
“Now, would you like knowledge of when to sell a certain stock, based on unpublished research? Yes? Well then, this is scarce knowledge. Pay me for it, or I won’t tell you.”
And so on.
Review logic, and realize AB = ABC is the form of all contracts dealing with restricted disclosure. A is knowledge, B,…,Z are people, and C is a condtion. “I’ll tell you A in exchange for Price 1, rather than what it is worth to me subjectively, say Price 2, Price 1 < Price 2. But if and only if C. You are only willing to pay Price 1, but I refuse to sell without C for anything less than Price 2, else I am less satisfied.”
Step 1:
Suppose we allow everyone else to copy A through B, then B is a sucker. But if he is a sucker, he wouldn’t make the contract. And A would be kept unknown from all people until whoever found it himself made use of it. Perhaps it is never made use of then.
That is, we get:
AB(D,E,F,…,Z) = ABC. B is a sucker to enter the agreement, because he pays and is bound, while everyone else gets A though him and yet is unbound.
Step 2:
For the contract to work, all people must not aid each other in circumventing it. This is implied in Leoni’s thesis of harmony of claims or Hayek’s thesis of functional but apparently “irrational” taboos.
Step 3:
Everyone wants A rather than not get A, so everyone agrees to BC = (D,E,F,…,Z)C.
And the contract works. Eventually, A gets around and is less scarce–it loses value and is no longer bought or sold.
Clayton is entirely right about enforcability being clearly important. But I argue that is handled through Hayekian customary rule.
I think we look at rights slightly differently. I see rights as something that emerges from law (customary law, not statutory law). I don’t think it makes sense to speak of “owning” a right, ownership is defined by rights (law).
So what if customary law figures out a way to enforce reserved rights? (I assume by customary law you mean things like tribal law, or private courts).
Well, this is where our difference on rights becomes important. I think that the ability to force (as in, physical force, violence) others to respect one’s rights is an integral part of the story of how rights emerge in the first place. There’s no incentive for an overwhelmingly powerful party to go to court to resolve his disputes, he can simply kill anyone that gets in his way. Dead people, clearly, have no rights. People who are afraid of dying don’t claim the rights they reasonably believe they have by virtue of being human beings because they prefer being alive with few rights to being dead (and having no rights).
This means that power imbalances matter to what rights can and will emerge.
Enforceability is a corollary to power. If I am impotent, I cannot enforce rights even if courts acknowledge those rights (again, I am speaking of natural order society, not the law-monopoly society we currently live in).
Whether intellectual property via reserved rights is a viable legal theory of rights in a natural order society will crucially depend on whether those rights could even be meaningfully enforced. So, enforceability matters.
I think that rights come from a basis of a goals and logic. Most people’s basic goal is living, but conflicts will arise. Peaceful conflict resolution is one of the most important condition for the common goal of living to be achieved. In order to have a peaceful conflict resolution we must have some set of objective rules. But they must also be in line with the first objective, which is to live. The set of rules which fits both of those conditions the best is property rights. Those rules, if we are to meet the first two objectives must have absolutely no exceptions. For if any exception is made, any exception can be made. And that would be antithetical to the original objectives. The best way to achieve your original goals is to respect those rules in regards to other people unless the person gives you reason to think they have or are going to break them. If somebody has shown that their main goal isn’t to live, but is to kill a whole bunch of people, well they no longer share the common basic goal of living, and they aren’t part of the base condition which give people rights, at least not the same rights anyway.
In order to enforce those rights, I have to buy it (expend labor). How I do that and what options are available to do that is completely a function of markets just as it is with food. Enforcement of rights is a good. Having property rights is completely a socially normative rule which can be found through logic based on where people’s base subjective goals meet. Where those rules are not enforced in a culture is one of two conditions, not sharing the same basic goal (e.g. my base goal is to enslave people for my subjective pleasure) or the result of being misinformed and making mistakes (e.g. thinking a state can actually advance that goal of living better than not having a state).
So, when you create this legal fiction of rights in non-scarce ideas, it creates a conflict in the real world of scarcity.
I have a claim to my creation of a book based on your pattern. You insist on owning a pattern and thus will aggress on me and my property.
See this cartoon if you still can’t grasp this simple concept. We can argue whether your aggression is justified, but at least admit we are talking about the same thing.
Because they are minarchists and therefore have to start a moral crusade to get the one size fits all answer to agree with their axioms. Thats my guess. If government was voluntary its a non issue.
Please excuse me, but I must object: repetition is not a method of arguing. I can, in fact, own some saltwater. Merely it has value to me or anyone else and I will not pay attention to it until it is scarce.
“Copying is not theft” “Copying is not theft” “Copying is not theft” … “Copying is not theft” = “Copying is not theft”K = “Copying is not theft”
Similarly,
“The box is blue” “The box is blue” “The box is blue” … “The box is blue” = “The box is blue”
Of course, if the box is not blue, then saying “The box is blue” K times will not do any better at explaining the word than saying it once.
You had not answered any of my points. And the fact that you can repeat the above idea proves my point.
Take the concept “Copying is not theft”. Suppose that you were especially aware and we were all unware of this. Why can we now repeat it without paying you anything?
“Copying is not theft” “all people” = “Copying is not theft” “all people” “can copy”
See; you merely disclosed it, and there was no contract. By default, if it was at all scarce, then now its not, and our condition is “can copy” since you said so.
It does not violate cutomary law to defend this sort of contract. It is a false exception. It is exactly in accordance with this customary law.
Example:
Let me try disclose something with a contract: “I will tell you what power supply I’d recommend to use, but only if you pay me one penny and don’t tell anybody else.”
Try to find that out voluntarily some other way just as easily?
You can drive to where I live, put up a ladder to my window, and try and see what I’m using, assuming of course that is what I would recommend. But is that really less costly?
You could, once you find out, share what I said and break the contract; but then no one would be willing to tell you anything except for a one time exchange that they’d find satisfactory right then and there, knowing that you’d or someone else would reveal the info. Five dollars instead of a penny, lets say.
Now, I doubt you or anyone else would pay five dollars. If they do, then no problem, but there are more things that can be exchanged for a penny than for five dollars…
Conclusion:
Unless BC = B(D,E,F,…,Z)C, AB = ABC, then a market problem, or a harmony of interests, is transformed into a strategic problem, or a conflict of interests.
Try plugging in an idea about how my specific power supply works.
All awareness is in some way specific. The reason 2 + 2 =4 is not specific is because it takes all of 1 millisecond to do the calculation youself and make it not scarce.
But a computer program that calculates pi to the trillionth decimal place has its answer published in a journal. This article costs 35 dollars, and you can only cite some parts.
Eventually no one needs to cite the article, since all parts have been cited. But by then, the journal received a couple hundred dollars or more, which might have been its owner’s mental “reservation price”.
It’s like reservation wage. Want me to work for less, then partially share profits. Want me to work only for wage, then pay the minimum exchange for my hour of leisure.
Then you would tell everyone about the fraud. People would not make deals with me once they hear about this. Cutomary law.
Suppose you hear that the company that makes power supply X makes defective power supplies very often. Even if just a rumor, sales of the company take a hit. The company can only dispel the rumor by making good power supplies.
(Or, if rather than a dollar, you paid me a hundred million, you might just go and sue me in a court – a private court in a free society backed by a PMC).
I’m not even arguing because you are irrational. Much like Stranger derived his list of “fallacies” from faulty premises, you here commit the same category error.
What I was doing is repeating the experiment for you to observe.
perhapsthen you will tell people not to sell books to me because i am a known copier… ok i have no problem with that. free speech.
alternatively if you bring a case, as you indicate above. you would seek restitution. similarly… in a case where i copy a book you sold me under terms that i would never make a copy. restitution would be… me returning to you your book (keeping whatever books i have that are ‘copies’) and you giving me the money i had paid in the original purchase.