Posts
I have been watching the conversation regarding IP, given
great life via the Wenzel - Kinsella debate.
I have made my thoughts on this topic known previously; the issue to me
is about enforcement.
Let’ say I develop some fabulous new product, using some
features and techniques of my own formulation.
However, I do not have the capability to bring the product to market – I
lack the technical, or production, or marketing skills. I contract to have another bring the product
to market. Part of my contract
stipulates limits on the sharing of my formula.
Can Coca-Cola not prohibit its bottlers and employees from
sharing certain aspects of the product design – by private contractual (not
governmental) means? If not, why not?
Led Zeppelin cannot place on its music a statement regarding
the terms of use?
I do not speak of the practicality of enforcement. I ask: What is wrong with such a contract?
I posted the following at EPJ
(in reply to a statement by the infamous “unknown”):
"Whether you support the state enforcement or the
anarchist enforcement it is irrelevant. What is relevant is that we agree on
whether we should spend our efforts enforcing IP. To this I stand with Kinsela
and think that we should not."
What's with this "we" and "our"
business? Feel free to not spend YOUR
time on whatever you don't want to spend it on.
Who are you to decide what I and another party spend OUR time on?
As I have suggested elsewhere, enforcement, for me, is the
only issue. The rest of this is all
noise to me.
Despite the potential futility of private and contractual
means of enforcement regarding IP in many cases, under what libertarian theory
is it valid to outlaw through force such agreements? Is there a non-aggressive means to disallow
two individuals from contracting regarding IP? Please, advance a possibility! What
violation of NAP is caused to a third party if I and another party decide on
such a contract?
More central planning by so-called libertarians.... What is
so scary about free markets?
--------------------
Please, someone offer an answer!
The issue isn't about contract law. No libertarian says that free individuals can't contract for whatever they want to contract. It doesn't matter the details of the contract, only that the members involved do so voluntarily.
ReplyDeleteThe debate is about whether ideas can be owned, not on how individuals chose to limit themselves via contract. This is a red herring.
I don't have to sign a contract with others in order to use physical property. When I go to the store and buy something, no contract is signed, nor is one needed. Contracts are generally signed when parties arrange to use property that is not theirs. For example, I signed a contract with my landlord to rent my apartment. The reason being that the apartment isn't mine. So we enter into an agreement on the use of the apartment.
In order for us to progress past meaningless semantics, I think we should first define what ownership entails. To me, ownership entails the exclusive use and control of a particular good. I believe this is the only thing that matters.
Lets look at things this way. If a person could look at any property I own, and then costlessly (or very cheaply reproduce what they saw), then the very notion of property would be moot. If people could easily and cheaply reproduce physical goods, then the very idea of taking something from someone would be superfluous and theft wouldn't exist. The very concept of theft and property exist because physical goods can't easily and cheaply be reproduced. This doesn't apply to ideas.
The only reason someone wants to prevent people from using ideas, is so that they can create a monopoly privilege, not because they are denied use of an idea, as would be the case if I took someones physical property.
The very notion of property exist because the same physical goods cannot be used by different people at the same time. Anyone reading this can use the English language, and their ability to do so does not prevent me from doing the same.
“The debate is about whether ideas can be owned, not on how individuals chose to limit themselves via contract. This is a red herring.”
DeleteNo red herring. Who are you to tell Coca Cola that they cannot “own” the formula for Coke? Who are you to say that a contract signed between Coke and its bottlers in regards to protecting the formula is invalid?
“In order for us to progress past meaningless semantics, I think we should first define what ownership entails. To me, ownership entails the exclusive use and control of a particular good. I believe this is the only thing that matters.”
No meaningless semantics; how about a real world example? Apply this to the formula for Coke.
“The only reason someone wants to prevent people from using ideas, is so that they can create a monopoly privilege…”
Do you have a problem with this, if it occurs via market means (not that a true monopoly can come about or be sustained via market means)? Are you a communist?
“Anyone reading this can use the English language, and their ability to do so does not prevent me from doing the same.”
Apply this to the formula for Coke.
I never said that a contract with Coke and its bottlers was invalid. It most certainly is. I even noted this in the above when I wrote "The issue isn't about contract law. No libertarian says that free individuals can't contract for whatever they want to contract. It doesn't matter the details of the contract, only that the members involved do so voluntarily." If Coke and anyone associated with them enters into a contract stating that any and all knowledge of the formula for Coke shall not be disclosed, I have ABSOLUTELY ZERO PROBLEM WITH THIS. (The caps are not meant to be offensive or yelling or disrespectful in any way. I just want it to be clear that this is not my issue. Never has been, or will it ever be.)
DeleteI am simply saying that if I somehow come across the formula for Coke, (the how is irrelevant to this discussion), and decide to provide this information to others or even sale a product based on this formula, that Coke in no way is denied the ability or opportunity to continue to sale their product. The only thing that happens is that now they face competition. The only possible result of which is lower sales and profits.
No, I am not a communist. How anyone could come to this conclusion based on what I wrote escapes me. I specifically provided an example of the clear difference between physical property and ideas. I noted that the only reason the concept of property exist, is because the use of physical goods is necessarily limited by its very nature, and that if physical property had the same properties as the English language, mathematics, physics, etc, (i.e. they were infinitely reproducible) no one would even bat an eye if something were taken from them simply because they could just as easily replace it.
I have a car. If some stranger strolled up to my car, took a picture of it, and then proceeded to make an exact replica of it, leaving my car intact, how could this possibly hurt me? I don't mean in a psychic sense. I mean in a sense that actually mattered to me, like my ability to use it for traveling purposes. The simple fact is that it wouldn't. And for this reason there would be no theft. There would be no damage. In fact, if no one told me that a person actually performed this act of replication, I would be none the wiser. I don't see how one could even begin to argue some kind of harm.
"I am simply saying that if I somehow come across the formula for Coke, (the how is irrelevant to this discussion)..."
DeleteI find the "how" completely relevant.
The bottler passed along the formula in violation of its agreement with Coke.
The recipient of the formula is most certainly in possession of stolen goods – whether or not the recipient knows the goods were stolen. There are remedies available to the original owner of the stolen good in such cases.
Any attempt to distinguish physical property from this intellectual property I am concluding is an exercise in meaningless theory. Coke’s property was stolen – its sole use of its proprietary formula is property just as much as the physical equipment that transforms the formula into a bubbly drink; Coke has a right to recover its property.
But this is the point in dispute. Can ideas be owned? Just because someone claims something as property doesn't make it so. If I claim to own the Lincoln Memorial, does this make it so? Of course not. Most people would ask for what reason I believed that the Lincoln Memorial was mine, and then listen to my arguments to see if my claim was valid. Do you disagree with this? If someone makes a claim, should people not ask whether or not the claim is at least justified? I don't think this is unreasonable.
DeleteAnyone can make any claim they want. The only way to determine whether or not the claim is justified, is to examine the arguments with regards to the claim. And so before we can even begin to label the sharing of ideas as theft, we must first establish whether ideas can indeed be legitimate property. (I am not talking about breaches of contract). Any breach of an established contract should face the consequences established in the contract.
And so to reiterate, the dispute is not about breaches of contract. I have said before that any contract with regards to trade secrets, formulas, etc, are completely valid. But being that some third parties are not involved in these contracts, and ideas cannot be returned to their original owners like with physical property, how can they be held liable to something in which they were never a party? How does one justify preventing the non-offending party from using the information thus obtained?
“If someone makes a claim, should people not ask whether or not the claim is at least justified?”
DeleteYes, this can be established for ideas just as it can for real property – evidence, arbitration, etc.
“But being that some third parties are not involved in these contracts, and ideas cannot be returned to their original owners like with physical property, how can they be held liable to something in which they were never a party?”
Third parties can be subject to terms of a contract, even if they didn’t sign it. Try receiving stolen goods – even if you didn’t know they were stolen – and see if you are not subject to the original owner’s rights.
The sole *use* of an idea can be returned to the original owner, if the owner feels strongly enough about pursuing the matter. Receipt in stolen goods, whether the recipient knew or didn’t know the goods were stolen, is an issue. In the case of ideas – say the formula for Coke – the stolen good was the sole proprietary use of the idea. The good isn’t merely the idea, but the sole use of the idea.
“How does one justify preventing the non-offending party from using the information thus obtained?”
At least in theory, the same way one justifies preventing the non-offending third-party recipient of a stolen cow (non-offending as he didn’t know the cow was stolen) from keeping and using the cow.
Sole proprietary use of the formula for Coke is not divisible, just as sole proprietary use of a cow is not divisible.
I haven't been interested enough in the topic to attempt to understand the controversy, which strikes me as extremely unimportant, but I've been somewhat disappointed by the childish rhetoric that's been employed, especially considering the low stakes. Gratuitous insult is generally the mark of one possessing the weaker argument, or none, as well demonstrated by our neocon friends over the last decade or so, which is why I was startled and dismayed when I first noticed it by some who I had supposed to be on the same (our?) side. Specifically Vox Day calling Wenzel an idiot who doesn't know what he's talking about and making reference to Gary North's fat belly. I assumed he was looking to establish himself as a gunslinger, but he just came off looking like a punk. I haven't been back to his site since and I had been a daily visitor (yeah, I know, big deal).
ReplyDeleteKinsella also came off poorly on style and therefore loses because the actual substance of his arguments don't really matter in anyone's real world. It's like getting really angry about baseball statistics or ford vs. chevy tee shirt designs.
Some of these guys need to show some class. They might start by finding the clip of the Buckley-Vidal dustup where Bill calls Gore a fag and threatens to punch him. Hilarious. I think it's called projection, but right there I knew Buckley was a bigger fag than the actually homo- Vidal.
Never let them see you sweat.
Part 1:
ReplyDeleteI am wondering – can you demonstrate to me in clear, unambitious language where any advanced( not a commenter at EPJ) AIP has denied the ability of people to voluntarily bind themselves by contract in a private law society?
Let us look at one, no two, no three examples( let us have real world examples in order to satisfy your demand for “real world examples”). Can Coke bind employees from sharing the secret recipe because they feel it is a trade secret? Of course, once again no one( relative) who has fully thought out AIP has, to my knowledge, denied that parties may not use contracts to prevent trade secret disclosures. Let us look deeper – trade secrets are only one form of IP....copyrights, patents being to others but this is not an all inclusive listing. Said in another way trade secrets can and are treated differently than say copyrights. But, let us return to the examples. In an An-Cap world if you willfully revealed Coke's trade secret to the public, yes why should you not be held responsible? However, three wonderments arise in my mind: 1. if the penalties for revealing the secret are too punishing, then why would I want to work for Coke - 2. I mean what if I accidentally revealed the secret but could not establish that I didn't do it willfully – then I am screwed I think. But whatever, let the free market bare out an idiot who would work under such a restrictive agreement( we already do now- -its called the statist society we live in now). 3. What can be done in an An-Cap world that has multiple independent, voluntary, self-sufficient societies that do not to rely on any other society for anything in order to sustain themselves. Let us say that you reveal( or I gain through actions on my own) access to Coke's trade secrets and I then share it with 5 million of my closest friends. Let us also say that you live in Wenzel's PIP self-sufficient An-Cap society and I live in Kinsella's AIP self-sufficient society. Let us further say that the insuring agencies of both reflect the IP philosophies of each---short of “super-agency (call it the state)”(h/t to: http://tinyurl.com/cb84cog – is this you?) what is your society to do against me or my society? Surely, you don't believe that in a sufficiently advanced future our world would have just one monolithic An-Cap society where all people follow and agree to one complete set of rules?
Let us now look at another example of why AIP is not anti-free market( that is your jest, right?). Currently/historically the fashion( clothing design only) industry do not use copyrights or patents and yet there is BIG money in fashion( please see: http://tinyurl.com/c453w2t). This industry thrives both creatively and financially without IP. What happens if/when designer A rips off a design from designer B and offers no credit or accommodation? Let us look at another example of how AIP is not anti-free market. I have recently wrote a single scope lens package( software program) for a desktop environment called Unity. Unity and the lens package belong to the wonderful world of open source Linux/UNIX. My lens is open source and free to others to use, copy, distribute, charge for( funny -huh, why would you pay for it when you can download it for free), modify it, etc, etc.( standard GNU license stuff). I make my money( if any) by providing education and customer support for those that use the lens. What happens if John Doe Linux hacker takes my lens, modifies it, and then passes it off as his own work, in toto? The same thing that happens to designer A and the same things that used to happen to merchants that did not abide by the private/non-government merchant court rulings(Lex mercatoria: http://tinyurl.com/cm852zk) – censure, ostracism. No one will have any dealings with this person(s) at all. They are effectively shut up and shut out of an ability to do business, to make a living. All by free markets!
Part 2:
ReplyDeleteNow in previous posts you have said that the whole theory underpinning IP is not a large concern of yours and you are not concerned with it very much: “I have never found the debate significantly important to me: can one own an idea (in its various manifestations)? While it is to me personally a rather peripheral issue given the other, more clear-cut, governmentally-enabled property rights violations we face daily, it is an important consideration for some in the libertarian community.” - your words. So why is it now that you accuse AIP libertarians of being central planners( code for communists), anti-free market, and now it would seem not even libertarians( come on BM, are you really going to disclaim the authorship of http://tinyurl.com/cb84cog . The language style and message is clearly yours! If you care so little about the theortical aspects that underpin IP and indeed An-Cap then why/what justification do you take such a strong response to AIP? Is you sole and entire philosophical underpinning/superstructure of An-Cap/Austro-Libertarianism based on contract theory? If so , then are you a utilitarian? If you are then you should carefully read what Walter Block does to the utilitarian approach to libertarianism( here: http://tinyurl.com/d5u5nud). Are you prepared to start including a very long list of libertarians on your “I used to refer to them as anti-IP libertarians, but I no longer feel this is appropriate” list?
“Thank you for elevating the temperature on this topic.”( h/t to you)
Best Regards,
STS
“I am wondering – can you demonstrate to me in clear, unambitious language where any advanced( not a commenter at EPJ) AIP has denied the ability of people to voluntarily bind themselves by contract in a private law society?”
DeleteIf this is accepted by advanced AIP proponents, then I see no conflict. The advanced AIP proponents can believe whatever they want about the ability to own an idea, as long as it is accepted that an idea can be protected via contract – and that third parties can be bound by those contracts whether they sign or not.
However this is interesting: What you are suggesting is that most of the pro-AIP commenters at EPJ are rather ignorant of their own position. Is this what you are suggesting?
“1. if the penalties for revealing the secret are too punishing, then why would I want to work for Coke”
That is Coke’s problem, isn’t it? They either have employment terms that attract qualified employees, or they don’t.
“2. I mean what if I accidentally revealed the secret but could not establish that I didn't do it willfully – then I am screwed I think.”
This problem is dealt with today. Consultants sign non-disclosure agreements all the time. Rarely is a breach prosecuted because it is so difficult to prove. As to the same applying to IP, I see this as a blessing. It suggests that breaches will not be pursued other than in the most significant and egregious cases – not for copying a quote off of a web site, but for the loss of the secrecy of the Coke formula.
“But whatever, let the free market bare out an idiot who would work under such a restrictive agreement( we already do now- -its called the statist society we live in now).”
Voluntary agreements between employer and employee cannot be referred to as statist, can they? What is your definition of “statist”? What do you mean by “Stop the State”?
“3. What can be done in an An-Cap world that has multiple independent, voluntary, self-sufficient societies that do not to rely on any other society for anything in order to sustain themselves.”
I don’t know that this would be the form of an An-Cap world. Are you sure that this is the form society would take? How do you know? In any case, we also have an example of this today. What happens when two drivers, represented by two different insurance companies, have a wreck? How is this resolved? Does it take war? Why not?
Your examples (clothing design / your lens) don’t demonstrate what you are trying to demonstrate. All that your examples demonstrate is that some industries, for whatever reason, have developed along certain lines regarding claims to property rights and others have developed along other lines. One cannot exclude that a free market regarding IP might develop along different lines in different industries.
“BM, are you really going to disclaim the authorship of http://tinyurl.com/cb84cog .”
Whoever wrote that sure made a strong statement. Likely aimed at the non-advanced thinkers regarding AIP that post at EPJ.
“Is you sole and entire philosophical underpinning/superstructure of An-Cap/Austro-Libertarianism based on contract theory? If so , then are you a utilitarian?”
I appreciate the An-Cap vision because it fits my version of *just*. In the case of IP: based on applying my effort to the natural world, and having ownership to the fruits of my effort. This applies to my brain as it does to my muscle. The attempt to draw a line between physical property and intellectual property, it seems to me, is wrong. Not for utilitarian reasons, but for principle.
As to contract theory – on what basis would you see an An-Cap world forming if not “say what you will do and do what you say”? Do you label this “utilitarian”? I label it inherent in NAP.
Part 1
ReplyDelete“However this is interesting: What you are suggesting is that most of the pro-AIP commenters at EPJ are rather ignorant of their own position. Is this what you are suggesting?”
Are you suggesting by inference that most PIP commentors at EPJ have an in depth grasp of the subject matter at hand?
“ This problem is dealt with today. Consultants sign non-disclosure agreements all the time. Rarely is a breach prosecuted because it is so difficult to prove. As to the same applying to IP, I see this as a blessing. It suggests that breaches will not be pursued other than in the most significant and egregious cases – not for copying a quote off of a web site, but for the loss of the secrecy of the Coke formula.”
Once again, I do not see AIP folks being anti-contractual in any specific sense, I'm just not satisfied that contracts can cover all arrangements.
“Voluntary agreements between employer and employee cannot be referred to as statist, can they? What is your definition of “statist”? What do you mean by “Stop the State”? “
Come on, in almost all instances the relationship between employer and employee is regulated by the state. Are you implying that the employer/employee relationship would be the same sans the state? And the same with your car insurance example, can you give me an example where state law does not regulate the activities between insurance companies- so it is misleading for you to use this example of a car wreck when the entire activity of resolution is regulated in some respect by a state law. How would the interaction be different sans a state.
“I don’t know that this would be the form of an An-Cap world. Are you sure that this is the form society would take? How do you know? In any case, we also have an example of this today. What happens when two drivers, represented by two different insurance companies, have a wreck? How is this resolved? Does it take war? Why not?”
Apples and oranges here, BM. You drive my point for me here, I don't know what an An-Cap world would look like – neither do you. At least I as an AIP libertarian allow for the possibility of societies based solely on contract theory( within a larger context). Why is it that you seem to conceive of only a one theory solution –are PIP folks central planning, again?
Part 2
ReplyDelete“Your examples (clothing design / your lens) don’t demonstrate what you are trying to demonstrate. All that your examples demonstrate is that some industries, for whatever reason, have developed along certain lines regarding claims to property rights and others have developed along other lines. One cannot exclude that a free market regarding IP might develop along different lines in different industries.”
I think you understand that my examples demonstrate exactly what I intended – why else would you reply as if they are contra to exactly what you asked for – concrete examples of non contract market solutions. Once again, AIP allows the use of contracts but does not exclude other free market arrangements as well. Do you favor the sole use of contracts within the market place or allowing the free market to decide best solution?
“Whoever wrote that sure made a strong statement. Likely aimed at the non-advanced thinkers regarding AIP that post at EPJ. “
So you disclaim it, then. Exactly my thoughts as well when I read it– but in the exact opposite direction. I read that post and thought – oh my we have a utilitarian among us. Second and immediate thought.....I wonder if this is the same idiot that gave Wenzel the “hey, I'm gonna grab your balls” advice for his debate with Kinsella?
Final thought – when you say “I appreciate the An-Cap vision because it fits my version of *just*. In the case of IP......Not for utilitarian reasons, but for principle.” what do you mean? Ok, ok – in other words when I ask a socialist why he believes in socialism, he says because it is just. So I say why is it just and he says I base what is right and wrong, what is just by principle. So I say, what principle? So how do you arrive at what is just? What is legitimate(lawful) and what is moral – the two cannot be conflated without great danger to liberty.
Best Regards,
STS
“Are you suggesting by inference that most PIP commentors at EPJ have an in depth grasp of the subject matter at hand?”
ReplyDeleteNo. I am reacting and responding to your earlier statement: “can you demonstrate to me in clear, unambitious language where any advanced( not a commenter at EPJ) AIP…” You seem to imply that most if not all of the AIP commenters at EPJ were not “advanced.”
“Once again, I do not see AIP folks being anti-contractual in any specific sense, I'm just not satisfied that contracts can cover all arrangements.”
I will begin by suggesting it might be possible we have different definitions of “contract.” When I use it, I don’t mean that it must always be written and signed by every affected party. Even contract law recognizes this. Contracts can be verbal. They can be implicit. Etc. But I do mean that people engage with each other, and sometimes custom (which members of society should be aware of if they are to function) dictates at least some of the interaction.
“Come on, in almost all instances the relationship between employer and employee is regulated by the state.”
Almost every action we take is somewhat regulated by the state. In the end, an employer is free to hire an employee or not (considering all factors, including regulation), and an employee is free to accept such offers. Certainly in the US the relationship is on the whole quite free.
“Are you implying that the employer/employee relationship would be the same sans the state?”
Who can say? I do know that this is a relatively free market today.
“And the same with your car insurance example, can you give me an example where state law does not regulate the activities between insurance companies- so it is misleading for you to use this example of a car wreck when the entire activity of resolution is regulated in some respect by a state law.”
You keep coming up with reasons why society absent the state cannot work. Why? Do you believe there won’t be insurance companies without the state?
“How would the interaction be different sans a state.”
If I had the answer, it would be proof that central planning works.
“Why is it that you seem to conceive of only a one theory solution…”
You and I must be completely miscommunicating. This statement of yours could not be further from my view.
“I think you understand that my examples demonstrate exactly what I intended – why else would you reply as if they are contra to exactly what you asked for – concrete examples of non contract market solutions.”
Again, my definition of contract is rather broad. I don’t believe our views are terribly divergent here. Perhaps I just didn’t understand your original statement in this context.
“Final thought – when you say “I appreciate the An-Cap vision because it fits my version of *just*. In the case of IP......Not for utilitarian reasons, but for principle.” what do you mean?”
I own me. Everything flows from there.