Copyright Discussion with Ryan Griggs

Ryan Griggs has offered his comments about copyright, libertarianism, and my direct, logical proof that intangible works are best understood as factories. Griggs:

There's no discussion of what makes production 'mass' production. Logical deduction builds seamlessly, one analytical step on another. The chain is broken. This isn't (logical)deduction. It's assertion. There goes “logical." 

Factories aren't created by homesteading. Homesteading is the acquisition of previously unowned resources. It's one of three ways of legitimate property acquisition. Is the creation of a factory traceable far back through time to the first instance of homesteading of that land upon which it sits? Sure. But that has nothing to do with the argument. There goes "direct."

"Production" is the rearrangement of rightly owned matter into a more useful configuration. An arbitrary border is ascribed to separate the new configuration from the rest of the universe, and the matter within the border is termed a "good". The newly-produced good can be said to have been "created", or "brought into existence", but in the physical sense, the producer has created nothing. The newly-produced good  is just a re-arrangement of pre-existing matter. In the economic sense however, production is creation.

Rather than "creation", I often use the term "homesteading" to refer to such an act of production, because it serves as a reminder that transformation, not discovery, is the crucial element in original appropriation of property. Since the newly-produced economic good was brought into existence, it was not previously owned, thus the producer has rightly acquired title to something previously un-owned. Whether to use the term "homesteading" in this context is merely a semantic problem. Libertarians agree that producer owns product.

All economic activity is aimed at producing consumer goods - things that are directly useful to individual humans. However, many goods are produced that are not directly useful to individual humans, but rather are themselves useful in producing consumer goods. Such indirectly useful goods are called "capital goods", or "producer goods".

"Mass production" occurs when, by virtue of the existence and use of a capital good, many identical instances of a consumer good are produced (or "manufactured", or "brought into existence", or "homesteaded") faster and less expensively than what could possibly occur absent the capital good. Since mass production is impossible without use of the capital good, the existence of many identical instances of a consumer good implies the existence and use of a capital good.

This sentence is literally unintelligible: "Writing and recording the song must be viewed as the homesteading of a factory, because it is precisely this human action that makes mass-production possible." Writing is the same as homesteading a factory? What? The act of recording sounds is homesteading a factory? Huh?

Yes, writing and recording a song is the production (or "creating", or "homesteading", or "building", or "making', etc. ) of a factory, because it makes mass production possible. Prior to the writing and recording of the song, if you wish to enjoy a music performance, you must first do the hard work of producing (or "creating", or "homesteading", or "building", or "making', etc.) your own new piece of music. Production must always precede consumption.  You are free to make your own original music, just as you are free to build your own car from scratch. You will find it is enormously less expensive to buy a copy of a mass-produced car.

How in the world is copying something in violation of a contract "trespass?"

Contract law covers disputes between people who already have a contract between them. It is important to keep in mind that one may only contract with one's own property. Contracts to buy, sell, license, or copy intangible works must be based on an underlying property right. So, copying a song in violation of a contract would be a breach of contract, not trespass. 

Tort law covers disputes between people with no contractual relationship. Copying by a person with no contractual relationship is known as "copyright infringement", best understood as trespass (not theft). Unauthorized copying is trespass because it is the use of a capital good owned by another. Copying interferes with the owner's use because it reduces the owner's use below 100% of the maximum possible use.

Trespass is the violation of the physical borders of another's private property (stepping into someone's home, taxation, etc.).

If you define trespass as the violation of the "physical" borders, you have simply smuggled your desired conclusion (property must be physical) into your premise. That's the oldest trick in philosophy.

Copyright' literally means the right to copy. If a seller of a good, say, a bit .mp3 data says prior to the sale that as a condition of sale the buyer may not 'copy,' that is, create an identical .mp3 file from the one that is being sold to him, we may say that the seller of the file is retaining 'copyright.' If the buyer agrees to the sellers condition, then he is bound by this condition. In other words, the buyer has agreed to a contract in which he receives a certain file *conditional on* his never 'copying' it. That's the proper libertarian analysis of copyright.

 This is why Rothbard said copyright was legitimate in a libertarian society.

One may only contract with one's own property. If there is no property right in the pattern of information, then there is simply no basis to form the contracts that Rothbard describes. In the real world, relatively free people do indeed form contracts to buy, sell, license, copy, and refrain from copying intangible goods. Intangible goods get delivered to happy customers millions of times per day, every day.

[The legitimacy of copyright] has nothing to do with mass production, or factories, or homesteading, or acts like writing or recording.

The human action of writing and recording a song is producing ("homesteading", "creating", "making" ) of a good. "Mass production" and "factories" are crucial to the understanding, because the song can function as a consumer good (for listening) or as a capital good (for mass producing copies). The writer ("homesteader") can sell you the consumer good (one song copy for listening), without selling you the capital good (the factory for making many copies).

Selling the consumer use of a thing while retaining the producer use of the thing is not unique to intangible goods. For example, it is very common for housing developers to sell a new house on the condition that the mineral rights to the land remain with the developer. If you buy a new house under those conditions, you are free to dig up your back yard to put in a swimming pool. You are not free to dig up your back yard to extract petroleum, that would be a breach of contract. If another unrelated person came to your yard and extracted petroleum, it would be trespass against the property rights of the developer, as well as against you.

Your discussion questions have absolutely nothing to do with whether copyright is valid according to the libertarian. The method of production of a good is totally irrelevant to libertarian analysis of the validity of the sort of transactions that may occur involving that good. The point is that a good is a good, 'mass produced' or not.

You are correct that "a good is a good, mass produced or not". You've ignored the point. The point of noting that song copies are mass produced is that, like any mass produced consumer good, there has got to be a factory somewhere, and the factory is also a good. Like any other factory, a song-master is owned by the person who built it. Making copies is the intended use of the factory, and the factory owner is entitled to 100% of the produce from the factory. Unauthorized copying is the unauthorized use of the factory owned by another, i.e. trespass.

Scarcity - Correctly Understood

All economic goods are scarce

All economic goods are scarce. This simply means that the supply of the good is less than infinite. There is a chance that all of the good will be consumed, making further consumption impossible.

Nothing is ever created or destroyed

The total quantity of matter and energy in the universe is fixed.  Matter can be transformed into energy, energy into matter. All the different chemical elements and compounds, and all forms of energy, are simply different arrangements of atoms (or sub-atomic particles, or disturbances in the Higgs field, or whatever nature's fundamental building blocks turn out to be).  For our purposes here, "atoms" means the fundamental building blocks of nature, and "matter" means any arrangement of atoms, including energy.

In all of history, human activity has never created or destroyed anything. All we do is transform matter as we find it into an arrangement we find more useful. The name given to this act of transforming matter into usefulness is "homesteading", while the useful thing is called a "good".

Elements of a Good 

 

All goods are comprised of two factors:

1. Matter 
2. Human effort

For example, imagine an arrangement of matter called "iron ore" laying inside a larger arrangement of matter called "a hillside". We know that iron can be very useful, because it can be fashioned into a cast-iron skillet, and a zillion other things.  However, this particular batch of iron is not an economic good, because laying undiscovered and dormant in a hillside, the iron is not in position to do us any good at all. So long as the iron lies in the hillside, it might just as well be at the bottom of the ocean, or on Mars, or a distant galaxy. It might just as well not exist at all. In terms of being an economic good, iron in the hillside does not exist. 

To transform iron ore into an economic good, somebody must first discover it, then go dig it up, bring it out, refine the ore, and do all the other things necessary to transform it into something that a person finds useful.

The same pattern - matter + human effort -  holds true for all goods. There is some arrangement of atoms that occurs in nature, and some human effort in transforming the atoms into a different arrangement.

What Causes Scarcity? 

 

Here is the key insight to understanding scarcity:

Matter is infinite, human effort is limited. 

The scarcity of economic goods is completely related to the limitations on human effort, and has nothing whatsoever to do with the quantity of matter.

Consider the organic compound known as petroleum. Petroleum is useful for making gasoline and hundreds of other products. Like any other economic good, petroleum is scarce, and seemingly becoming more scarce all the time. After all, once petroleum is pumped out of the ground, refined into gasoline, and burned up, it is gone forever, right? It's only a matter of time before it is all used up, right? It's tempting to think that the scarcity of petroleum has to do with the limited quantity that exists. But it isn't so.

What we call "petroleum" is just another arrangement of atoms. Burning it up transforms the arrangement, but destroys nothing. Even if we pumped out and burned up every last drop of naturally occurring petroleum, if we wanted more of it, all we would have to do is figure out how synthesize more petroleum from the matter at hand. Doing so may be prohibitively expensive, or even  technologically impossible to accomplish. But all that means is that there is insufficient human effort available to solve the problem. The scarcity of petroleum is not a function of its quantity, even if the quantity goes down to zero. Human effort is always the limiting factor creating scarcity. This is true of iron, petroleum, and every other economic good, without exception.

What About So-Called "Free Goods"?

Atmospheric air is widely cited as the quintessential example of a "free good", meaning that atmospheric air is supposedly non-scarce. But we can see that atmospheric air follows the same pattern. Atmospheric air blanketing planet Earth is not immediately useful. In order to make use of air, a person must bring it under control by inhaling, i.e. flexing the diaphragm muscles, drawing air into the depths of the lung tissue, where the precious oxygen can be extracted and exchanged for carbon dioxide, and exhaled as a waste product.

Every breath you take is an act of homesteading. 

Baker's First Postulate:

 

Every economic good is comprised of two factors - matter and human effort.

Baker's Second Postulate:

 

The supply of matter is infinite and literally inexhaustible, while the supply of human effort is limited.

Baker's Third Postulate:

 

Economic scarcity derives entirely from the limitation on human effort, and has nothing to do with the quantity of matter.

 

Proof of IP Validity

I would like to convince you that copyright is a valid form of property, in accordance with libertarian principles of non-aggression and original acquisition of property by homesteading. I propose the following two axioms.

1. The existence of a mass-produced good is proof that a factory exists. 

2. The existence of a mass-produced good is proof that the factory was used. 

Is there any possible argument against those two claims? I fail to see one. In every corner of modern civilization we see mass-produced goods - food, clothing, electronics, vehicles, medicines. In every case, there is a factory somewhere, transforming some type of raw material with some type of machinery that makes more efficient use of human labor, i.e., a capital good that makes possible the mass-production of a consumer good.

Axiom 1 implies the human action of homesteading 

 

Factories do not occur in nature, they must be created by a homesteader. The existence of a factory implies that an act of homesteading occurred. Prior to the act, mass-production of this particular consumer good was impossible. After the act, and because of the act, mass-production is now possible. According to libertarian property theory, the homesteader rightly owns the factory, and the produce from the factory.

Axiom 2 implies the human action of using  

 

Axiom two states that if a mass-produced good exists, then the factory must have been used. This follows from an understanding of what a factory is. To obtain finished mass-produced goods, there must be an input of some type of raw material, energy, and human effort. Even if the factory is "completely automated", there still must be a human decision to operate.

Thus, on observing the existence of any mass-produced good, the following questions can be asked:

1. Who homesteaded (thus owns) the factory?
2. Who used the factory to make these particular instances of the mass-produced good?
3. Is the person who used the factory authorized by the owner to do so?

If the user is not authorized, then use is trespass.

Application to Copyright

 

Multiple identical copies of a song are an example of a mass-produced consumer good. In light of the above, this proves the existence of, and the use of a factory. When it comes to mass-producing song copies, what exactly is "the factory", and who is using it? 

Writing and recording the song must be viewed as the homesteading of a factory, because it is precisely this human action that makes mass-production possible. Before writing and recording, it was impossible to mass-produce identical song-copies. Now, with the existence of the song-master, it is possible. The creation of a new song brings into existence a mass-production capability that did not exist prior. Therefore the writer is a homesteader, and rightly owns the factory and its produce, according to libertarian theory, just as with any other mass-produced good.

Making copies of the song must be viewed as using the factory, because there is no other way for mass-produced goods to come into existence other than using a factory. The salient question is whether or not the person who made the copies was authorized by the factory owner, for exactly the same reasons as above.

If the user is not authorized, then copying is trespass.

Conclusion

 

Unauthorized copying is trespass.

Discussion Questions

 

Are there any examples of mass-produced goods which do not require the existence of a factory?

Are there any examples of mass-produced goods which do not require the use of a factory?

Is there some sense in which copying digital media files is not mass-production?

Is a Recipe both a Factory and a Widget?

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  Stephen Davis September 22, 2014, 10:38 pm

  Ok. Is a recipe both a factory and a widget? What makes particular ideas, knowledge, information, patterns, recipes, etc. both a factory and a widget?

  
  When a pattern of information is itself a consumer good, it is a widget. When a pattern of information can be used to make identical copies of a consumer good, it is a factory. There are two different senses in which you might be asking about the possible intellectual property rights in a "recipe" - depending on whether you consider the recipe to be a consumer good itself, or merely an element in making a consumer good known as a "cake".
  
  

  Sense #1 - The Pattern Itself is a Consumer Good

   

  In one sense, a "recipe" can be like a story, written on paper. We would wonder if this particular recipe is sufficiently complex and large enough to warrant a copyright. If copies of the recipe could function as a consumer good, then in that sense the "recipe" is like a widget. Certainly a book with many recipes is unique and original enough to warrant a copyright, just like any other book. A book of recipes is like a widget.
  
  A book of recipes could also be like a factory, because you could use it to mass-produce book-copies. When used for mass-production, I refer to the book as one "book-master", to distinguish it from the many "book-copies".
  
  

  Sense #2 - The Pattern Itself is Not the Consumer Good 

   

  In a different sense, we might wonder about trying to own the underlying methods of cake-making described in the recipe. Such a property right would be a "patent". As we've discussed, I don't find patent to be valid, because a patent merely describes how homesteading could be done, but is not an act of homesteading itself.
  
  In this sense, a "recipe" is not like a widget, because you cannot eat the recipe.

  In this sense, the "recipe" does not give you the ability to mass-produce cakes. For that, you need a physical cake-factory and also a recipe. Thus, a "recipe" by itself is not like a factory.
  
  
  

  Cakes, Recipes, Methods and Songs 

   

  A song-copy is like a cake, because you can listen to a song-copy, just like you can eat the cake.  The song-master is like a cake-factory, because it can be used for mass-production of song-copies, just like a big physical building with lots of machines inside could be used for the mass-production of cake-copies.
  
  A songwriting instruction book "Methods for Writing Pop Songs" is like a recipe instruction book "Methods for Baking Great Cakes". We can copyright the pattern of information printed on the pages, but we cannot patent the underlying methods described.
  
  Kinsella has done such a thorough job at conflating copyright and patent, I likely will spend the rest of my natural life attempting to unravel his confusion.
  
  

  Logical Rule 

   

  Rule: If it contains the ability to make many identical copies of a good, then it is a factory. If not, then not.
  
  
  
  
  
  
  
  
  

Stephan Kinsella on Alexander Baker

 

 Stephan Kinsella September 20, 2014, 5:33 pm Reply

 

I will not reply anymore to Baker’s various screeds advocating intellectual fascism, since he always deletes them. He has lost my contribution due to his insane advocacy of his pretend little niche. He thinks he has some contribution to make intellectually or artistically but there is no evidence for either but for his insane, embarrassing megalomaniacal braggadocio (I know he’s just a pretend-engineer, but he can look up the words he doesn’t grok). I think Baker is a completely dishonest fraud and thinker of no import whatsoever, and what’s more, I think he has barely enough intelligence to realize this, which is why he compounds the error by adding lie upon lie. He has no argument whatsoever for IP, but he insists on doubling down–to his shame. What a shame. How sad. Shame, Baker, Shame. You’ve become a pathetic advocate of dishonesty, fascism, socialism, and lies. And in the name of some distorted, half-baked version of fake-engineer (for I doubt he is really even a real engineer, though masquerading as one), he adopts the posture of some knowledgeable, truth-seeking person, when the truth is, as is apparent, his just sad, desperate, dishonest, and ultimately intentionally advocating malevolent ideas. And he repeats it over and over–this is the sin or pride, and of self-interested blindedness. He wants to make money doing his alleged craft–so he crafts an elaborate excuse for the laws the he thinks will allow him to do so. He is no different than a government school teacher arguing for property taxes to support government schools. Yet unlike her, he parades under the banner of liberty, sullying it. That is his doing. That is his choice. Baker is evil, and is not a libertarian. He is an exemplar of the reason why we have the drug war, taxes, the state, drones, the whole shebang. Congratulations, Baker, congrats.

Principles of Tort Law According to Matt Gilliland, J.D.

We at liberty.me are very fortunate to have among us doctor of jurisprudence Matt Gilliland. In opposing copyright, and wishing to educate me on principles of tort law, Gilliland has offered various comments in response to my article “Tell it to Tatiana”. Frankly his comments don’t make much sense to me, but then again, I haven’t yet earned my J.D. Hopefully Gilliland will come and clear things up here.

My position, and the accepted libertarian position, is that all legal rights are property rights. This begins, first and foremost, with the property right we all have in our own physical body. Property rights also extend to those things that have been rightly homesteaded, or acquired through voluntary contractual exchange with other homesteaders. Only valid property may be the subject of a contract.
Accepting the above, an important conclusion can be drawn:

All legal wrongs are property violations.

The corollary of which is:

If there is no property violation,

there is no legal wrong.

Confusingly,  Gilliland appears to both agree and disagree with my assertion that “all legal wrongs are property violations”. Says he:

I did not claim that tort actions did not require the violation of a property right. In fact, you’ll notice that I explicitly said that the damages must result from a property violation. This does not mean that the damages themselves are property violations — in fact, many and possibly most damages aren’t.

Um, what? “Damages” is a legal term that refers to the actual loss suffered by the plaintiff. For example, if you smash my car, in every day speech we might say the car is “damaged”. But this is not the same as legal “damages”. To avoid confusion, let us refer to crumpled car parts as an “injury to property”. The legal “damages” here would be the amount of money needed to fix the car, and a Court could “award damages” to the me (the plaintiff), and order you (the defendant) to pay.

With that hopefully cleared up, let me repeat. In a just, sane, libertarian society, all legal wrongs arise from property violations, i.e injury to property. And included in “property” is the human body. Legal damages flow as compensation to correct the property injury.

So does Gilliland agree, or disagree? I’m not sure, and I hope he clears it up.

Plagiarism

 

“Plagiarism”,  currently understood as a form of copyright infringement, occurs when the defendant falsely claims authorship of what is actually the Plaintiff’s original work (say, a song). It has been claimed by Matt Gilliland and others that plagiarism could be prosecuted without copyright law.
I offered a hypothetical example in which I downloaded one of Tatiana Moroz’s songs, falsely claimed authorship, then licensed the song to a TV show. Gilliland agrees that, without copyright, Tatiana has no case against me. This is troubling enough. But Gilliland asserts that the TV producer would have a “Fraud” action against me, because I lied about authorship. I don’t think that’s correct, because the TV producer does not suffer an injury to property.

Fraud

“Fraud” (modernly synonymous with “intentional misrepresentation”) is an intentional tort defined as follows:

an intentional deception by the defendant, relied upon by the plaintiff, causing harm to the plaintiff’s person or property.

Gilliland attacks the problem this way:

Because the consent [to the song license contract] is not valid since the contracted-for song by you is not delivered, there is a functional theft of the license price. Other losses derive from that property violation. Damages must derive from a property violation, but not all damages have to themselves be property violations.

Um, what? First, I did deliver the contracted-for song. The TV producer listened to the song, liked it, agreed to license it, and I delivered exactly the song he bought. I am happy, he is happy. Where is the property injury?

Second, what “other losses derive from that [supposed] property violation”?  When I pointed out that the authorship of the song may not matter at all to the TV producer, Gilliland responded with:

Res ipsa. Why would you claim authorship if it didn’t matter?

I said that authorship didn’t matter to the licensee. Typically, TV shows don’t give screen credit to writers of licensed background music. They don’t care. They just want an appropriate piece of music to massage the audience’s emotions.

Res Ipsa Loquitor

Moreover, “Res Ipsa” is a latin legal term “Res Ipsa Loquitor” which literally means “The thing speaks for itself”. Res Ipsa applies to negligence cases, not fraud, and can only serve as a substitute to show duty of care and breach of duty. Res Ipsa is not a substitute for showing damages. This is an established principle in existing Common Law, and I believe it is good law. If Gilliland feels Res Ipsa should be redefined in a libertarian world, then he should say so.

Question for Matt Gilliland

So in continuing my exploration of how a Kinsellist world might operate, I ask Matt Gilliland:
Can you provide an example where damages arise from something other than a property injury?

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Matt Gilliland September 17, 2014, 9:34 pm Reply

You have incredibly poor reading comprehension, and even poorer understanding of how damages work. It is likely to your benefit that I don’t have time to engage further, and I’m fairly confident it would do no good, as you haven’t managed to understand much of anything I spent time writing yesterday.
P.S. – It’s hilarious that you’re being pissy about the J.D. thing; you *bragged* about your knowledge with the appeal to the fact that you were a law student and knew all about this, and then *bragged* about having passed the FYLSE, and said it was the hardest law exam in the country. I suppose you were hoping no one would realize that it meant you couldn’t get into an accredited school or failed out of one after your first year. You got called out, and now you’re just babbling incoherently based on your faulty reading of what I wrote on your other topic.

No Copyright? Tell it to Tatiana

Tatiana Moroz is a wonderfully talented singer-songwriter, lover of liberty, and member here at liberty.me. A few months ago I engaged her on the issue of copyright.

I asked Tatiana if it was OK that I downloaded her songs, put my own name on as writer, and then licensed them for use on a TV show so that I could collect the license fees and performance royalties for myself.

Tatiana was reluctant to take a position on copyright, with me anyway, and I get it. I think she feels really conflicted. On the one hand, she instinctively understands that her songs are just that – HER songs. On the other hand, she’s been told that copyright is somehow “illegitimate”, imposing a “negative servitude” on others, and a “violation” of the property rights of others.

My discussion style is highly confrontational, which doesn’t make me a lot of friends around here. Such is my choice, and it might have at least something to do with your willingness to endorse the abolition of my property rights over my songs.

But what about Tatiana? She is a sweetheart with a golden voice and wonderful words. So tell her. Call out Tatiana Moroz, by name, and explain to her PERSONALLY why she doesn’t own her songs, and why I should be allowed to put my name on them as author, and do anything I want with them.


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1. Matt Gilliland September 16, 2014, 9:43 pm Reply

   “I asked Tatiana if it was OK that I downloaded her songs, put my own name on as writer, and then licensed them for use on a TV show so that I could collect the license fees and performance royalties for myself.”
   Way to butcher that strawman.
   • 
     

     Alexander Baker September 16, 2014, 10:17 pm Reply

     @ Matt – How is this a strawman argument? Please explain Matt.
     Plagiarism is copyright infringement. Without a property right in a pattern of information, then there’s nothing wrong with plagiarism.
     A slightly different question is this:
     Why can’t I just take Tatiana’s music, use it in my TV show without Tatiana’s permission, and without crediting her?
     • 
       

       Matt Gilliland September 16, 2014, 10:24 pm Reply

       “Plagiarism is copyright infringement. Without a property right in a pattern of information, then there’s nothing wrong with plagiarism.”
       It pains me that you somehow typed this without thinking about the fact that it’s fraud.
       “Why can’t I just take Tatiana’s music, use it in my TV show without Tatiana’s permission, and without crediting her?”
       I don’t have a problem with that qua libertarianism. I would dislike it personally because I place a value on giving credit to people, but as someone who has had their graphic design work used quite a bit without credit (and who has made money on that freely-released work anyway, in spite of your doomsaying to the contrary), I don’t think it should be illegal because it doesn’t violate property rights.
       • 
         

         Alexander Baker September 16, 2014, 10:39 pm Reply

         Hi Matt – With all due respect, I know exactly what fraud is, and you obviously do not.
         Fraud requires 3 elements – deception, reliance, and damages. Without showing damage to property, there is no fraud. As I pointed out to Dave, “lying” is only wrong when used to deprive another of property. No property – no fraud.
         You might want to know that I’m a 3rd year law student, and I’ve passed the California FYLSE, widely considered to be the toughest law exam in the U.S.
         • 
           

           Matt Gilliland September 16, 2014, 11:03 pm

           With all due respect, 3L, I have my J.D., which means I also know that having taken the FYLSE indicates that you either couldn’t get into an ABA-accredited law school, or you failed out at an accredited school. It is most certainly NOT considered among the profession to be the toughest law exam in the US — it merely has the lowest passage rate (because, as pointed out above, those taking it are not exactly top of the barrel). Congrats on passing it, but you can’t even spot fraud in your own hypo, so you may very well find the *actual* bar exam to be troublesome. Please check your unjustified pretension at the door.
           In your hypothetical, you put your name on the songs *and licensed them for use*. That’s fraud against the licensee, because without knowledge of the original authorship, the licensee cannot effectively consent.
           Damages in fraud don’t have to be to a property right; if as a result of your hypothetical fraud, reputation damages to the parent company were suffered because some people don’t like being lied to about authorship, this would suffice for the damages element, even though one does not own reputation, because the licensee is in a worse state than would have been the case if the representations made had been non-fraudulent.
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           Alexander Baker September 16, 2014, 11:25 pm

           @Matt – I don’t want to get in a pissing match with a JD who works for a website and never passed any bar exam. You’re way over my pay grade.
           If I license Tatiana’s song to a TV show, with my name, yes I deceived them. Perhaps they relied upon my deception, if my name somehow encouraged them to buy. Perhaps not, if their decision was based solely on the music. In either case, they are not damaged.
           They paid for a song, I delivered a song. Right Mr. Esquire?
         • 
           

           Matt Gilliland September 16, 2014, 11:34 pm

           @alexander
           You’re right, you shouldn’t get into a pissing match with me on this, because you obviously don’t know what you’re talking about.
           If you offer a song written by you and deliver a song written by you, then consent was ineffective, and even if there weren’t damages, the contract would be voidable at the option of the licensee. I already explained how there would quite easily be damages as a proximate result of the fraud, since damages in such a claim don’t have to be to a property right. They can be any harm or loss that puts one in a worse position after than before, even if a property right is not affected. If the TV show lost even just Tatiana as a viewer, that would be damages sufficient to meet the element.
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           Alexander Baker September 17, 2014, 12:22 am

           @ Matt – there several things to parse out here, most importantly that you are ignoring the proper plaintiff, i.e. victim – Tatiana.
           1. All legal rights are property rights, all legal wrongs are property wrongs. This is the libertarian view. I’m quite aware that there are any number of statist “laws” that purport to find “rights” and “wrongs” unrelated to property. They are all bogus.
           If you wish to allow tort action against a defendant when the plaintiff has suffered no property injury, then this completely defeats the anti-IP theory you’re trying to defend. You copy my song, so I sue you for defamation, or negligent infliction of emotional distress, or something else.
           Right? The whole point of Kinsellism is to DISALLOW legal action against copiers, by REMOVING the property right that makes legal action possible. If a property injury was unnecessary for a tort action, as you suggest, then Kinsella’s thesis is moot.
           2. You assert that lying about authorship would somehow render consent to license ineffective, but you don’t explain how or why. Not every detail is automatically relevant. Whose name appears as author MIGHT make a difference to the licensee, but it might not. Even if it does, it could cut either way.
           You’re correct that a reduction in audience size would be the licensee’s damages, AND THAT IS A PROPERTY DAMAGE, because the licensee can trace audience size to ad revenue. Absent this connection to licensee’s bottom line, the licensee is not damaged.
           3. And, suppose using my name INCREASES the audience share enjoyed by the licensee. The licensee is certainly not damaged in that case. OK? Me and the licensee are both happy. Why would the licensee sue me?
           4. What about Tatiana? Tatiana is the proper plaintiff here, in my view. But my view absolutely requires a property right over the pattern of information known as her song. Absent copyright, I certainly didn’t didn’t defraud Tatiana, because I didn’t make any representations to Tatiana at all. Absent a property right in her song, what are Tatiana’s damages?
         • 
           

           Matt Gilliland September 17, 2014, 1:05 am

           “most importantly that you are ignoring the proper plaintiff, i.e. victim – Tatiana. ”
           No, I’m not ignoring her. She just hasn’t had her property rights violated. Sorry.
           “All legal rights are property rights”
           Yes.
           “all legal wrongs are property wrongs”
           Sorry, but no. Damages don’t have to be direct damages to property, as I’ll show using your example in a moment.
           “If you wish to allow tort action against a defendant when the plaintiff has suffered no property injury, then this completely defeats the anti-IP theory you’re trying to defend.”
           Incorrect once again. Because the consent is not valid since the contracted-for song by you is not delivered, there is a functional theft of the license price. Other losses derive from that property violation. Damages must derive from a property violation, but not all damages have to themselves be property violations.
           “You assert that lying about authorship would somehow render consent to license ineffective, but you don’t explain how or why. Not every detail is automatically relevant. Whose name appears as author MIGHT make a difference to the licensee, but it might not. Even if it does, it could cut either way.”
           Res ipsa. Why would you claim authorship if it didn’t matter? OF COURSE authorship claims matter, even if they don’t have anything to do with property rights. There’s definitely a value to presenting works licensed directly from creators, because even without IP, people still care about authorship. I also mentioned that, at best, it’s voidable if not void. There’s a claim there whether the licensee chooses to make it or not.
           “You’re correct that a reduction in audience size would be the licensee’s damages, AND THAT IS A PROPERTY DAMAGE, because the licensee can trace audience size to ad revenue. Absent this connection to licensee’s bottom line, the licensee is not damaged. ”
           One does not have a right to revenue or audience. Come on.
           “And, suppose using my name INCREASES the audience share enjoyed by the licensee. The licensee is certainly not damaged in that case. OK? Me and the licensee are both happy. Why would the licensee sue me?”
           If the licensee doesn’t want to sue you, I’m fine with that. That’s obviously their option.
           “What about Tatiana? Tatiana is the proper plaintiff here, in my view. But my view absolutely requires a property right over the pattern of information known as her song. Absent copyright, I certainly didn’t didn’t defraud Tatiana, because I didn’t make any representations to Tatiana at all. Absent a property right in her song, what are Tatiana’s damages?”
           She has none. Sorry. I know that grinds your gears.
         • 
           

           Alexander Baker September 17, 2014, 1:32 am

           Matt, this is painful. First you claim that tort actions need not be founded on property violations. But then you say copyright enforcement is illegitimate, because no property right was violated.
           Well, which is it? Do tort actions require property damage, or not?
           You keep saying that if the plaintiff is “in a worse position”, that will suffice to show damages. That’s a crass equivocation. When we speak of being “in a worse position”, that MEANS PROPERTY DAMAGE.
           And for crying out loud, are you really going to hang your JD hat on this: “One does not have a right to revenue or audience.” Matt, YOU are the one who offered a reduced audience as a showing of damages, remember? That was your case counselor, not mine, LOL.
           I simply connected the dots of proximate causation from the audience reduction, to loss of ad revenue, to lost profits.
         • 
           

           Matt Gilliland September 17, 2014, 1:42 am

           I agree that this is painful.
           I did not claim that tort actions did not require the violation of a property right. In fact, you’ll notice that I explicitly said that the damages must result from a property violation. This does not mean that the damages themselves are property violations — in fact, many and possibly most damages aren’t.
           “Matt, YOU are the one who offered a reduced audience as a showing of damages, remember? That was your case counselor, not mine, LOL. ”
           Yes, and it’s completely consistent with what I’ve said. A reduction in audience is a damage that derives from the violation of a property right (the fraud) but is not itself the violation of a property right. It’s almost as if you aren’t reading my responses. Allow me the liberty of quoting myself, since you missed it the first go-around: “Because the consent is not valid since the contracted-for song by you is not delivered, there is a functional theft of the license price. Other losses derive from that property violation. Damages must derive from a property violation, but not all damages have to themselves be property violations.”
2. 
   

   Chip Marce September 16, 2014, 9:57 pm Reply

   Heh, heh.
   That said, i think there is a happy medium to be found. I don’t see the point of patents; in essence they reward the first person to run to the patent office. Copyrights? Hmmm. More of a grey area there. I do not agree with copyrights that last more than say a generation.
   • 
     

     Alexander Baker September 16, 2014, 10:21 pm Reply

     @ Chip – The application of my theory shows no property right in a “method” (i.e. patent), but does find one in a finished intangible work (i.e. copyright).
     If there is a property right, it should be forever. If you think copyright should expire, it seems you don’t find a property right at all.
3. 
   

   Dave Burns September 16, 2014, 10:18 pm Reply

   Lying about authorship is a separate issue from who owns the copyright, or whether the copyright system is legitimate.
   • 
     

     Alexander Baker September 16, 2014, 10:27 pm Reply

     @ Dave – All legal rights are property rights, and all legal wrongs are property violations.
     Thus “Lying” is only illegal when used to deprive another person of property. “Fraud”, for example requires 3 elements – deception, reliance, damages. If the plaintiff cannot show damage (to property) there is no fraud.
     Lying can even be virtuous, as with lying to a robber who demands to know where the jewels are hidden.
     “Lying about authorship” has a name. It’s called “plagiarism”. Absent copyright, what does Tatiana do about plagiarism? And what does she do about any form of copyright infringement, like simply using her music on a TV show?
     • 
       

       Dave Burns September 17, 2014, 12:42 am Reply

       Lying is illegal when committing fraud, as in, I trick you into giving me money, and the money is property. Thus your statement is trivially true, but does not mean what you seem to imply. If you receive money intended for someone else by lying about your authorship, that is fraud, regardless of whether the song or whatever is copyrighted, or who owns the copyright, or whether or not copyright is legitimate.
       • 
         

         Alexander Baker September 17, 2014, 1:13 am Reply

         Not so fast Mr. Burns.
         There are 3 parties in my example – Tatiana, me, and the TV producer. You want to construe plagiarism as fraud. Who is the plaintiff, and who is the defendant? Who is damaged, and who is unjustly enriched?
         • 
           

           Dave Burns September 17, 2014, 5:33 am

           Plaintiff got lied to and paid money. Defendant lied and received money.
         • 
           

           Dave Burns September 17, 2014, 5:43 am

           Defendant offered X for sale and delivered Y, lying that it was X. Sounds like fraud to me.
         • 
           

           Alexander Baker September 17, 2014, 1:16 pm

           WHO is the plaintiff? WHO is the defendant?
         • 
           

           Dave Burns September 17, 2014, 6:38 pm

           I will leave that as an exercise for the interested reader.
         • 
           

           _ _ September 17, 2014, 11:05 pm

           tatiana is not a party in the scenario, it is simply fraud against the tv producer
4. 
   

   Alexander Baker September 16, 2014, 10:29 pm Reply

   What do you say to Tatiana Moroz?
   • 
     

     Frank Marcopolos September 16, 2014, 11:36 pm Reply

     I usually say. “Good morrning, ma’am,” but then again I’m kinda polite.
     Note: This is a joke. (Not guaranteed to be funny to all persons on Earth.)
5. 
   

   David Montgomery September 17, 2014, 7:06 pm Reply

   If I were Tatiana, I would desperately hope that Lady Gaga, Beyonce, Katy f’ing Perry, Christina Aguilera, Rhianna, Pink, and Shakira all took one of my songs and falsely claimed to be the author of said song. I would further hope that each of those songs took turns going to the top of the charts. When the truth outed that I was the actual author of those songs, rather than suing them I would send them gift baskets and heartfelt letters thanking them for launching my name, reputation and career into the stratosphere.
   • 
     

     Alexander Baker September 17, 2014, 8:00 pm Reply

     @ David Montgomery – Yours is a crystal clear example of what the Marxists call “new socialist man”. Tatiana should ignore what used to be her property rights, and work “according to her abilities” and be happy and proud to serve her community, without expecting any financial compensation.
     You are perfectly free to have this view. But let’s please call it what it is: Intellectual Communism.
     • 
       

       David Montgomery September 18, 2014, 5:07 pm Reply

       Intellectual Communism is an oxymoron.
       I’m not suggesting that falsely claiming authorship would be the right thing for those pop stars to do or that there should be a system that institutionalizes false authorship claims; only that this scenario would be a massive boon to Tatiana’s career, reputation and earnings power. Use some common sense and you’ll see why viewing this unlikely event as a nightmare rather than a boon is absurd.
       • 
         

         Alexander Baker September 18, 2014, 5:54 pm Reply

         Getting 100,000,000 people to listen to your complaint about plagiarism is just as difficult as getting 100,000,000 people to listen to your song.
         Your assertion that Tatiana would automatically become famous because a famous singer plagiarized her song is unsupported. Famous singers become famous in large part because they are very skilled at publicity. So what if Tatiana can “prove” she really wrote Katy Perry’s latest hit? Prove it to whom? The 200 people that visit her website? Who cares?
         You’re attempting a utilitarian economic argument which suggests that Tatiana will be economically better served by surrendering her property rights than by enforcing them. This is straight out of the Communist Manifesto. Modernly, it smacks of “Zeitgeist”.
         Conversely, the “Common Sense” that I rely on is the Austrian School of Economics, and free market economics in general. Abolishing copyright is abolishing property rights in producer goods. The results of abolishing property rights in producer goods are theoretically understood, and empirically well-documented in the real world (e.g. farm produce in the Soviet Union, Bangladesh, factory production in North Korea, etc. )
         Do you see? Getting 100,000,000 people to listen to your complaint about plagiarism is just as difficult as getting 100,000,000 people to listen to your song.