IP Freely: Patri on Intellectual Property

Nothing you probably haven't heard 1000 times before, but Patri has a useful post up on his livejournal summarizing his views on intellectual property, with helpful input and clarification in the comment thread.

In unrelated news, I downloaded Limewire this morning and am currently listening to a mix of The Ramones, The Misfits, The Raconteurs, Maroon 5, and The White Stripes' newest album, Icky Thump.

Breaking the law, breaking the law... ooh, time to download some Judas Priest... Come get me, RIAA.

Share this

Out of curiosity...

...I assume that you don't believe that IP "rights" can come about through contract?

(I should probably refrain from this because of Wilde's 2nd Law of Blogging: Any blog posts on IP, free will, and "anarchy" are bound to churn out 70+ comment-long exercises in mental masturbation. But I can't resist.)

Went over their an questioned the echo chamber

Went over there and questioned the apparent echo chamber on this very point. Also pointed out that IP can be accomplished with standard property rights methods.

I think I've posted on this

I think I've posted on this question before, Jonathan, in a discussion with JTK. If I remember correctly, I think it comes down to whether third parties who do not explicitly agree to the IP contract are still bound to respect it, i.e. A sells limited IP rights to B, B agrees not to violate contract by sharing IP with third parties, B violates contract and posts IP publicly for C's consumption; does A have an enforceable claim against C? I don't think so, but reasonable people can disagree. This is why I said in my earlier post that the perspective of legal rights is not the best way to approach the IP issue. It's more a matter of utilitarian economics and technology, i.e. what works, not necessarily what is "right." What we believe is right is to a large extent determined by existing and past technology, and will not necessarily be appropriate given technological changes, such as the Intertubes.

Ah, that's right

Yeah, I remember.  I think I probably share your views.  Yet, I still feel guilty about downloading anything illegally. 

Don't see why C isn't liable to return A's property interests

Certainly C is liable to return stolen goods. So in the case of IP as physical property use and mixing then why shouldn't C have the same obligation to return those goods produced as a byproduct of using A property as a production input?

With a proper contract C's use can be seen as consumption of stolen property, or at least B will be required to compensate A for his damages. A becomes a valid co-owner in any goods C produces by using A's property. Recompensation would require disentangling this mess. The cleanist way to do it is give all copies to A and allow him to pay C for raw materials and effort, in kind or by destroying the objects. This way the judge need not determine market prices for non-commodity values like IP, and can stick to easily calculated raw material and labor costs. B pays for all transaction costs. Yes, and like in all cases sometimes B can't pay for the harm he's caused, and sometimes not only A but C will be screwed.

Avoid circular argument

Certainly C is liable to return stolen goods. So in the case of IP as
physical property use and mixing then why shouldn't C have the same
obligation to return those goods produced as a byproduct of using A
property as a production input?

"IP as physical property use and mixing" seems to wrap up your own opinions on the matter as if it were an agreed-upon term. Or maybe not - it's not clear, because it amounts to a multi-word neologism. If you want to actually explain something you probably should write sentences and not multipart neologisms. Physical property is one thing, IP is another thing, and you personally seem to believe that IP is somehow the same thing as physical property, or is implementable by means of physical property and contracts, or something along those lines. Emphasis on you personally. You can't start using your personal beliefs as shared terminology in arguments until you have gotten others to agree to those beliefs.

With a proper contract C's use can be seen as consumption of stolen
property, or at least B will be required to compensate A for his
damages. A becomes a valid co-owner in any goods C produces by using
A's property.

How does A become a valid co-owner of goods produced by C? You mention "a proper contract". You seem to have in mind a particular contract, not just any old contract, but you need to describe the contract that you believes makes A physical owner of all the copies of his product. The contract in question has to be between A and B - that is by assumption. It is presumably this contract which makes A part-owner of things that B produces by using A's property. But then when B gives a copy to C, even if that is A's property (because of A's contract with B), A does not have a contract with C. If A truly owns things that C makes with A's property even though A has no contract with C, then contracts must be unnecessary. There is no contract between A and C, and yet A still (in your view) retains ownership of copies that C makes. But then what was the point of the "proper contract" that you just mentioned previously?

Too much handwaving in your comment.

Elsewhere

"Or maybe not - it's not clear, because it amounts to a multi-word
neologism. If you want to actually explain something you probably
should write sentences and not multipart neologisms."

More of the argument is over at Patri's site. Still further at Mises.

"How does A become a valid co-owner of goods produced by C?"

See my argument about the Toyota plant. Just modify it so that B "sells" C the plant owned by A without A's knowledge. C then procedes to making cars using A's machinery, robots and the like. Even if C uses his own raw materials and not the ones at the plant it's pretty clear that A has ownership interest in the cars produced.

To see this you need to understand that machinery is just as much an consumed input into a production process as raw materials. The consumption rate is much slower but it is still consumptive. Molds wear out, blades dull, and robots age and break down. There is also exclusion of use involved. The rightful property owner has been excluded from his desired use of the plant during the period C uses it. Even if he desired to leave it idle. C gained control and thus appropriated property of A because of a fraud commited by B. C isn't criminally responsible but he still owes A back his property.

Just because I'm leaving my field fallow to increase future harvests, allow soil pathogens to starve, and the like doesn't mean that you can move in and plant something while I'm off tending other fields, or away on a trade ship. If you did raise crops in my fields those partially my crops even if you brought in your own fertilzer, seed and the farm implements. The courts would need to decide how much you must compensate me so they would probably use open market land rental rates as a proxy.

The co-ownership issue and what I mean by it is covered over at Patri's.

 

Link to Argument on IP over at Mises

Here's at least part of my argument over at Mises.

Here's an excerpt of the kinds of issues I've talked about there but not here or at Patri's.

Actually it's not a contradiction. The idea is instantiated in the
physical object. In fact ideas do not exist in this world unless
instantiated in physical objects like your brain, a book, or an item
exhibiting the idea.

Ideas in this sense can exist without any conscious knower. For
instance, the sweet pea uses coiled tendrils as shock absorbers at it's
points of attachment to other plants. This idea of using coiled spring
shock absorbers was instantiated in the plant (an in it's genes)
without any "knower". Ideas are informational and that can be carried
in many ways in this world. But always there is a physical object
involved (light being considered physical also).

Because the information is carried in the attributes of the object
and objects can have similar attributes the same information can be
carried by multiple objects. When an object carries such information it
is an instantiation of an idea.

Since the attributes of the object are part of it one owns them too.
So one owns the instantiation of the idea as inherent in that object
when one owns that object wholly. It's quite possible that someone else
also owns the idea as instantiated in another object.

One doesn't own the "free floating" or platonic idea. That's just an
abstraction that really doesn't exist and in fact one based on a false
philosophy.

I think patent law is wrong in that it grants ownership over the
platonic. Copyrights properly implemented do not suffer from such
flaws. All that anyone owns with copyright law is the instantiations of
the idea.

 

 

BTW, that was an argument with the one who shall not be named.

He was as rude as ever if I remember correctly. Arguments with him degenerate so quickly that it hard to disambiguate the conversations. They all seem to end up being about one thing, how stupid the other people are, and how obviously correct he is.

I'm not sure I finished my argument. I may have gotten K-fed up.

Pleased to clarify any hand waving if you like.

Since the attributes of

Since the attributes of the object are part of it one owns them too.
So one owns the instantiation of the idea as inherent in that object
when one owns that object wholly.

Just as (you claim) there is no such thing as free floating, platonic ideas existing independently in the abstract, so too there is no such thing as "owning an object wholly." To own a piece of property is to own a finite bundle of rights; that bundle is limited in certain ways, those limits (positively determined) by social decisions and physics, and (normatively determined) by social values, all of which are influenced by economics, geography and technology, among many other factors. One cannot own an object wholly, at least not without dire consequences for society as a whole and the concept of property in general, for to own an object wholly would mean that one can do whatever one pleases with that object, all other people and their equal rights to property be damned.

Your gravitational pull

You appear to be affecting my wholly owned object by exerting a gravitational pull on it. Please remove yourself from the universe.

Gravity

Actually, it's the other way round, your pulling on me. I do understand your concern over the gravitational pull of my manhood however. ;)

Part of ownership is responsibility for the consequences the object creates. In this case there is none because humans exert negligable gravitational forces. If however I were to create a black hole in a bottle I might just be libel for the gravitational consequences. It wouldn't (or shouldn't as I don't trust the judgement of lawyers) do me any good to argue that I didn't own the gravitational pull caused by the object.

Things would certainly be different in space, and if you shot a large rocket close to and past someone elses property causing it to fall out of orbit I don't see why you wouldn't be considered the owner of the offending gravity.

If an MRI business moves in next door to a knife shop at a strip mall do you really think that they could disavow ownership of the magnetic forces that cause the knives to fly around next door? "I own the MRI machine but those magnetic fields, well those were just unowned public property."

 

Problem for me then problem for you

Do you think you have the right to grab my object to copy it or not? If I hide it from you do you think you have the right to observe it so that you can copy it? If I hide it's internal workings and destroy it before disposal do you think you have the right to force me to reveal it's operation?

I either control the object or I don't. The example of say stabbing you with the object is an independent issue of trespass. If you think it's a problem for my conception of property rights then it's a problem for the entire libertarian and anarchist edifice.

Use your ability to abstract and see the similarity in application of this as in every other right. Copying something is a use. The problems are identical with other kinds of uses. No reason why I can make up a special fragrance and charge you for smelling my bottle of perfume. If on the other hand I douse myself with it and walk in public I'm basically forcing it on others and cannot turn around an charge them for it.

Sorry, Macker, but I'm not

Sorry, Macker, but I'm not gonna grab your "object."

The problems are identical with other kinds of uses.

No. IP is nonrivalrous. That is an important distinction when talking about use.

No reason why I can make up a special fragrance and charge you for
smelling my bottle of perfume. If on the other hand I douse myself with
it and walk in public I'm basically forcing it on others and cannot
turn around an charge them for it

So you sell me your unique brand of cologne. Do I then have the right to wear the cologne you created in public? What if a third party walks by me with a chemical sniffer and clones the cologne? Can you turn around and charge this third party for it?

Certainly C is liable to

Certainly C is liable to return stolen goods.

That is far from certain. The goods in question are not objectively "stolen" - hell, they aren't even objectively "goods", independent of a contract between two parties.

Remember, we are talking about a case where there is no public law governing the creation or transaction of IP; the only relevant law here is contractual, created through the unanimous consent of all the parties to the contract, A and B. C is not a party to the contract, so it is circular to assume that C is bound by a contract to which C was not a party and did not consent, simply on the grounds that C possesses stolen goods; the very question we are trying to determine is whether or not such a contract creates enforceable obligations on third parties; you cannot assume the very conclusion you are attempting to prove.

Suppose I, Micha Ghertner, send you, Brian Macker, an email one day offering to teach you a new word I recently "discovered", on condition that you do not share this new word with anyone else without my permission, or if you do, you must pay me a small licensing fee, perhaps for every time you use this word (the word I created) in conversation with a third party.

Further suppose that you, Brian Macker, agree to these conditions, and subsequently learn my new word, a word you like very much and hope to use quite often. Later, you (knowingly or unknowingly - does it even matter?) allow this word to "leak" out to a third party--Jonathan Wilde, perhaps--and now Jonathan knows this word and can share it and teach it to others, yet Jonathan was never a party to a contract with the word's original author, me.

Do I have any enforceable claim against Jonathan for using my property without permission? I might have an enforceable claim against you, Brian Macker, since you agreed to my contract which you later violated, but on what grounds do I have a claim against Jonathan?

Is this example silly since society and public law doesn't recognize individual words as worthy of such strong protection? But then, what if society and public law did recognize this? Would it be a wise recognition? Efficient? Just? And why does it matter what society or public law recognizes anyway? Mightn't they be wrong and us right?

Value is key here

In my theory I tied the IP to a physical object, which is absent in your example.

I'm not even sure it's a valid contract in this case. Sure the guy who paid traded something of value. Can an invented word really be counted as having any value which would cement the contract? You could certainly pay for the service of making up such a word but the word it self carries no value as far as I can tell.

Why the hell would C even care if he was restricted in this case from using such a word? Clearly the made up word is of little or no value. Also it's going to
be next to impossible to prove someone else using the word has not
invented it himself.

 

In my theory I tied the IP

In my theory I tied the IP to a physical object, which is absent in your example.
I don't see any worthwhile distinction here. Does a song's melody count as IP tied to a physical object? What object? The radio? Your larynx? The whole point of IP is that it is not connected to any specific physical object.
Can an invented word really be counted as having any value which would cement the contract? You could certainly pay for the service of making up such a word but the word it self carries no value as far as I can tell.
Says who? You? Why is a single word any different than a phrase, a melody, a collection of words organized into a poem, a novel, a collection of 1's and 0's organized into a CD, DVD, ...
Why the hell would C even care if he was restricted in this case from using such a word?
Well, he might care if A had an enforceable claim against him. Otherwise, he wouldn't.
Clearly the made up word is of little or no value.
Again, Orly? Says who? You? Isn't value... subjective?
Also it's going to be next to impossible to prove someone else using the word has not invented it himself.
Not significantly more or less difficult than proving anything else in IP law. What are the odds that two people independently arrive at the same unique string of say, 6 or more letters, to both mean precisely the same, specific thing? Significantly more likely than two people independently writing the same poem? Maybe, but where do we draw the line? Where Brian Macker tells us to?

Well IP would be a misnomer actually.

"The whole point of IP is that it is not connected to any specific physical object."
Not being a Platonist I beg to differ. Ideas are always instantiated in objects. One owns the information content of the objects via the physical items. One can own platonic ideals. I can't own the idea of the circle. I think patents are invalid for this reason.
IP becomes a misnomer actually. The words "copy right" being more appropriate. It really is tied to physical replication.
"Not significantly more or less difficult than proving anything else in IP law."
Not true at all. Once you get to book length strings of words, or strings of ideas within such a novel, it is pretty much like using fingerprints or genetic testing to prove replication. I covered this over a Mises also. Plus the issue of losing a book, abandoned IP property, homesteading and the like.
Interestingly the same ideas can and I think should be used with regards to genetic information. I think that a rational set of rules regarding genetic information can be deduced from thinking about your unique genetic code as being personal property gifted to you by your parents. Then using a "rational man" measure of reasonable care should be used in deciding whether you've maintained ownership over such information, sold it, or given it freely away.

Why a separate copyright law?

If copyright can really be derived from physical property rights, why do we even bother with copyright law?

The Toyota plant example cannot be extended to a random producer's object (and I am not sure it can be sustained itself, but it definitely cannot be extended). Suppose that I sell you a cookie cutter. You then proceed to use the cookie cutter to make cookies. Do I have the right to sue you for violating my copyright? No, not without some added details. So there is no automatic copyright. It must somehow be expressly established.

What if I sell you the cookie cutter but we have a contract that says you will not actually produce cookies? In this case, I can legally prevent you from cutting cookies, but if you give the cookie cutter to someone else, the recipient has no contractual obligation to me. For this reason, I don't think contracts ultimately work.

So what's left? Maybe this: I grant you partial ownership of the cookie cutter, but I retain ownership over the use of the cookie cutter to make cookies. This is not contract-based, but property-based. I retain a property right in the use of the cookie cutter as a cookie cutter.

But now suppose that you use the cookie cutter to make another cookie cutter. Even if I can sue you for this use, nevertheless there is a new cookie cutter in the world. And even if you want to argue that I somehow also partly own that new cookie cutter because it was made from the first cookie cutter, on what basis do I specifically own the right to use that new cookie cutter to make cookies? This would be a recursive right. In fact, you didn't even argue that far. All you argued was that I have a right to sue you for the value of the produced object. Fine - so I have the right to sue you (and you are, say, a pauper). But there is still this other cookie cutter. My ability to demand that you pay me the value of the new cookie cutter does not automatically translate into my ownership of the use of the new cookie cutter to make cookies.

Suppose (as happens with Internet file-sharing) someone has a 10th or 20th generation copy of the original cookie cutter? How does my property right in the use of the original cookie cutter to make copies, extend into a property right in the use of the 20th-generation cookie cutter to make copies? It doesn't. Not by itself. Ownership of the use of a specific object to make copies is nothing other than ownership of that object to make copies. It does not, by itself, extend to any particular kind of ownership of its own copies. I think that, at best, you need to specifically cook up some sort of recursive property right that somehow infects generation after generation of copy (the copy, the copy of the copy, the copy of the copy of the copy). It is not at all clear to me such a property right can be established.

 

"The whole point of IP is

"The whole point of IP is that it is not connected to any specific physical object."
Not being a Platonist I beg to differ. Ideas are always instantiated in
objects. One owns the information content of the objects via the
physical items.

You don't have to be a platonist to understand that the whole point of IP is that an idea is not connected to any specific physical object. The key word here being specific. Even if you believe that ideas must reside within a medium, it doesn't follow that an idea must reside in a specific medium that you control. And you are merely asserting that one owns the information content of a physical medium by virtue of owning that physical medium, without argument; I disagree. I'd give my reasons for disagreement, but Roderick Long already did that job for me.

You're not getting it

"And you are merely asserting that one owns the information content of a
physical medium by virtue of owning that physical medium, without
argument;"

No I'm not. Just because I own a hula hoop doesn't mean I own the plantonic ideal of a circle.

Nor does it mean you own the

Nor does it mean you own the platonic ideal of a hula hoop, and can legitimately prevent me from making one myself.

Precisely

Exactly that is true, now you understand. Well maybe not.

Recursiveness

"If copyright can really be derived from physical property rights, why do we even bother with copyright law?"
Don't ask me. Probably because people weren't smart enough to figure it out. Most likely they didn't bother because the people who desired such things already had laws more powerful than they should have gotten.
Reading the start of the rest of your post my first reaction is, "No you don't get it". The contract is to establish what you are selling and what you are retaining property rights over. Then you hit on my point.
I see no fundmental difference between using a mold to make an object or a mold to make a mold. In both cases you are using the object as a productive input.
So all I need do when I sell it is retain rights over all uses of the cookie cutter except 1) Using it privately to make cookies. 2) Destruction of the cookie cutter. 3) The metal therein.
Where does the maintainence across owners on the original object arise. Well just think about when people sell land while retaining mineral rights. Just because the land is resold doesn't mean the new owner gets the mineral rights too. He has to buy those separately. Same goes with the cookie cutter. The current owner can't sell the cookie cutter without the encumberances.
What about recursion of ownership with regard to manufactured goods. Let's simplify. Suppose object A makes duplicates of itself directly. It can make two types of duplicates. One type can be utilized to make another A of any kind whereas another cannot be used to make an A of any type. Lets label fertile objects with uppercase A but infertile ones with lowercase a. Call those duplicates at generation one A', at two A'', etc.
Obviously one need not worry about a's because they cannot be used to make more As or as.
The original creator then need only specify in the sales contract that he is only selling certain rights with regard to copying an reselling of duplicates. He is not selling full ownership in the object, but only partial ownership. Let's call such a limited ownership and encumbered A or an encumbered a.
So the new owner is an encumbered owner and the inventor is the copy right owner.
Suppose that the a's produced are the consumer good that is intended to be produced by the buyer of A. Well then the inventor of A can sell it with the proviso that he retains the right to create A's with it, and that he partially owns any such A's created. This naturally is true if he never sold A in the first place, so it naturally follows that if the purchaser violates this rule it's the same as a thief stealing the original A.
Now clearly the ownership in any A' created illegally is identical in nature to the ownership in A itself. Either the ownership in A' was established by theft of A or misuse of A.
Even if the original A is sold to a new owner the inventor retains his rights. So there is no way out of this.
Now it's possible that the consumer good intended to be produced by A is always fertile, and there is no way to produce infertile a type goods. Well that's easy to resolve. Just require that the encumbered owner be further encumbered to sell only encumbered copies with ownership over these copies retained by the inventor.
Given any An in which is encumbered with the copyright owned by the inventor, then any An + 1 copy produced was done with An as a productive input. So the holder of copyright An is partial owner in An + 1 by virtue of the fact his property was used in the production of it. This is naturally recursive.
The only question to resolve here is what aspect of some downstream object he owns. I already argued over a Patri's that the raw materials and labor involved in copying are usually minimal, and certainly can be recovered or compensated for. The bulk of the value actually resides in the information content being duplicated via the copying.
So how naturally to divide the ownership in the unauthorized copy. Obviously some division needs to be made so what is natural.
Now my argument would be that people own objects in the first place because of the cause and effect nature of their labor on the raw materials. People morally deserve to reap the consequences of their actions in so far as they attempt not to force those consequences on others. In the case of the copied object the information content is the direct consequence of copying the very aspect of the original that the copy right intends to protect.
That is the fact that the copy is valuable is directly traceable to the original object and not the raw materials input or the labor involved in copying. In fact where copyright adovcates think there case is the strongest is exactly where these costs are minimal.
When adjudicating this it is only natural to ascribe the value of the informational content to the copyright owner, production costs to the copier, and raw material costs to the copier.
Certainly if you accidentally or by fraud used someone elses cookie cutter to make a golden cookie out of gold bullion, you would not want the owner of the cookie cutter to claim half ownership in your gold. Also if the actual production costs are large you wouldn't want things to go fifty/fifty should the co-owner take you to court and ask for liquidation of the object to get restitution.
It's quite natural for this division to be made from level n to n + 1. Since it results in the exact same type of ownership at level n + 1 for the copy right holder it is indeed recursive to any level. That is, if this is done at any recursion level it naturally follows to the next level because of identical an ownership division.
Thus the ownership right is recursive and maintains it's separate identity.
Hopefully, I have explained this well enough for you to get the idea.

Sorry it screwed up my paragraph breaks

For some reason it removed the double newlines at the end of the paragraph breaks. You can still sort of make out where the paragraphs end. Hope that's enough.

Nonbreaks are okay

It's mainly the paragraphs between those nonbreaks that I am having a problem with. Chuckle, chuckle.

For a lot of people, value isn't the full, sufficient core of property rights. Rivalry is a necessary part of it. See where Micha is using the word "nonrivalrous". Your point is that the value is carried from original to copy, to copy of copy, and so on. But that's not enough to create a property right in the valuable aspect of the copies. When someone uses your own original to copy, maybe that's a rivalrous use of your original object (even this is not entirely certain). But once the new object is created, any use of the new object is not itself a rivalrous use of your original object. You might argue, "it is a rivalrous use fo the copy, and you own the copy", but first you need to establish that you own the copy with respect to that use. If you argue "you must own it because it is valuable, and specifically you have a property right in the copy as a template for further copies", I don't buy this.

If ownership followed value, then the problem of positive externalities would be a non-problem. But it's not a non-problem, because ownership does not follow value.

Consider this reductio: if ownership followed value in the particular case where the value of a copy was its use as a template to produce further copies, then ownership should follow value generally. Your argument is value-based, so if it is valied it should be valid for any value whatsoever derived from the original. It should be illegal to enjoy any positive externalities whatsoever. But when we look at actual property law, while value is relevant to ownership, the physical substrate is also relevant. Once value spreads beyond the original by entering the copies, then that value is separated from the physical substrate of the original.

Suppose you are a musician. Someone plays your record. He lives in an apartment. He has a neighbor, Bob, who enjoys listening to the record through the paper-thin walls. Bob's enjoyment does not in any way interrupt the enjoyment of the person playing your record, and so is nonrivalrous, since the essence of rivalry is interruption of the original use. Suppose one day Bob thinks, "if I simply record the record as my neighbor plays it, then I can play it whenever I want." So one day your customer plays your record, and meanwhile Bob records it as it travels through the paper-thin wall to his apartment. So now Bob has a copy, and he has created the copy through nonrivalrous means. After some time, Bob plays the record for his guest, who loves it, so Bob makes a copy. Et cetera.

Skip Limewire

Get SoulSeek. You can find some obscure stuff and the program allows users to share and download entire folders, making the transfer of complete albums very easy and common.

http://www.slsknet.org

I'm assuming you're using a WinTel machine, although there is a Mac version of the software as well (it's called ssX).

Thanks, Kyle. How does

Thanks, Kyle. How does Soulseek compare in terms of selection and number of users?

The number of users is less,

The number of users is less, but the variety of music greater. Pay the $5 "donation" to SoulSeek to get the privledged download status and you should be set. I was able to download early albums from The Clean and the Bird Nest Roys (early 80s New Zeland surf rock) if that gives you any kind of indication of the scope of music available.

Check out the chatrooms organized by genre of music as well. You can browse the shared files of everyone in the chatroom and should be able to find music that fits your tastes along those lines.