* * *
Suppose we live in a voluntary, stateless society. Dispute Resolution
Agencies (DROs) exist to enforce tort law and contracts. For the
purpose of this exercise, let’s assume DROs exercise the authority to
impose fines and otherwise punish tort violators.All forms of intellectual property (IP), including copyright, have been abolished. Kinsella’s “Against Intellectual Property” may be cited in legal proceedings as law.
Gary Goodwriter writes an awesome novel, and allows customers to download it as an e-book for a price. The terms of sale clearly state that the customer agrees not to make copies, and that disputes will be handled by DRO.
Carla Copyist purchases a download of the e-book from Gary. Despite the sales agreement, she makes copies of the novel. Carla’s copies still credit Gary Goodwriter as author, and are identical to the original, except Carla’s copies no longer contain any language prohibiting copying. She posts copies anonymously, here and there.
Danny Distributor obtains a free copy of the novel from somewhere on the internet, but he honestly doesn’t remember where. Danny posts the novel on his own site, and is able to sell some copies for a price.
Peter Plagiarist purchases and downloads a copy from Danny. Peter makes copies, substituting his own name as author, falsely taking full credit for writing the novel. Peter is able to sell some copies for a price.
Allie Attributor writes a brand new novel of her own. The cover of Allie’s book states in bold print, “written by Gary Goodwriter”. Because Gary enjoys something of a reputation as a fine author, Allie is able to sell some copies for a price.
Fawning Fan buys a copy of the first novel from Peter Plagiarist, and a copy of the second novel from Allie Attributor.
Civil disputes arise. You are the judge at the DRO (Dispute Resolution Organization). How do you decide:
1. Goodwriter v. Copyist
[A] Goodwriter wins because he had a contract with Copyist which disallowed copying.
[B] Copyist wins because one can only contract with that which is property. Since IP is abolished, the contract is void.
[B] Copyist wins because one can only contract with that which is property. Since IP is abolished, the contract is void.
[A] Whatever amount was specified and agreed to in the contract.
[B] A reasonable amount per copy that Copyist made.
[C] A reasonable amount per copy that Copyist made, plus all subsequent copiers.
[D] No damage award is possible, regardless of contract terms, because IP is abolished.
[B] A reasonable amount per copy that Copyist made.
[C] A reasonable amount per copy that Copyist made, plus all subsequent copiers.
[D] No damage award is possible, regardless of contract terms, because IP is abolished.
[A] Goodwriter wins, because Distributor should have known about Goodwriter’s no-copy policy.
[B] Distributor wins, because Distributor did not know about Goodwriter’s no-copy policy.
[C] Distributor wins, irrespective of Goodwriter’s no-copy policy, because IP is abolished.
[B] Distributor wins, because Distributor did not know about Goodwriter’s no-copy policy.
[C] Distributor wins, irrespective of Goodwriter’s no-copy policy, because IP is abolished.
[A] Goodwriter wins, because Plagiarist defrauded Goodwriter.
[B] Goodwrtier wins, because Plagiarist sullied Goodwriter’s good name.
[C] Plagiarist wins, because Goodwriter cannot show damage to property, because IP is abolished.
[B] Goodwrtier wins, because Plagiarist sullied Goodwriter’s good name.
[C] Plagiarist wins, because Goodwriter cannot show damage to property, because IP is abolished.
[A] Fan wins, because Plagiarist defrauded Fan by pretending to have written the novel.
[B] Plagiarist wins, because Fan cannot show damage to property, because IP is abolished.
[B] Plagiarist wins, because Fan cannot show damage to property, because IP is abolished.
[A] Goodwriter wins, because Attributor defrauded Goodwriter.
[B] Goodwriter wins, because Attributor sullied Goodwriter’s good name.
[C] Atributor wins, because Goodwriter cannot show damage to property, because IP is abolished.
[B] Goodwriter wins, because Attributor sullied Goodwriter’s good name.
[C] Atributor wins, because Goodwriter cannot show damage to property, because IP is abolished.
[A] Fan wins, because Attributor defrauded Fan, by pretending that Goodwriter wrote the novel.
[B] Attributor wins, because Fan cannot show damage to property, because IP is abolished.
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[B] Attributor wins, because Fan cannot show damage to property, because IP is abolished.
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My scenario: DRO says “read your contract” and refuses all these cases. Good writer starts an Internet beef with various of these persons, generating publicity for his book. Serious fans buy it although they could get it free. (Might as well rename him Cory Doctorow.) He holds a kickstarter campaign for the sequel, makes a bushel of money.
DRO refuses ALL these cases? Including Goodwriter v. Copyist (who appear to have a contract)?
Goodwriter starts an Internet beef? On what basis? Is copying wrong? If so, why? Is plagiarism wrong? If so, why? Is false attribution wrong? If so, why?
My DRO does. They don’t have time for expensive nonsense.
“Goodwriter starts an Internet beef? On what basis?”
Since when does anyone need a basis? Anything that makes a good story or attracts attention can be the basis for an internet beef. Maybe just state the facts: “She promised not to but she did!” “He’s selling my stuff!” “He selling my stuff with his name on it!” “She’s selling crap pretending I wrote it!” You claim that all these belong in a courtroom, internet beefs can be much more trivial than anything that fits that description.
“Is copying wrong? If so, why?”
No. I’m not sure I’m ready to claim it is right, either. But enforcing a law or contract regarding copying either just doesn’t work or requires an unconscionable amount of snooping, chilling, hoop jumping, etc.
“Is plagiarism wrong? If so, why? Is false attribution wrong? If so, why?”
Both are instances of lying. DRO seems like overkill to me. To clarify, I am pretty confident that if this ever becomes a problem, other, more reasonable and low-cost solutions will be found. I doubt anyone will be able to make a living selling fake Steven King novels or passing off Steven King novels as their own. Embarrassment seems to be the enforcement mechanism that discourages plagiarism.
First, on what grounds would DRO’s operate? Since there is no state they would not likely be operating without someone paying for the service. How would the various parties come to confront each other and be held accountable for the decisions reached? After all, what difference would it make to a person whose position was decided against if they didn’t care in the first place and maybe didn’t even respond to a notice that a claim had been filed with the DRO.
Another issue I would raise is your statement that all forms of intellectual property had been abolished. If you mean that books, songs, music, etc no longer exist then the scenario you’ve painted is complete non-sense. On the other hand, if you meant to say that legal restrictions on the copying and reproduction of intellectual property no longer exist, you have an entirely different situation.
This distinction seems to be blurred in your earlier article about IP also. It is not the existence of these things that are in question, but the existence or absence of legal state-mandated and enforced controls over their dissemination.
DROs would be insurance companies. Customers pay premiums in exchange for protection and dispute resolution services. Contract enforcement is easily understood, as contracting parties agree up front to be bound by the decisions of a DRO.
Tort law applies to situations where a person violates the person or property of another, and no contract exists between them. Any society, statist or stateless, must confront this problem. For the purpose of this exercise, let’s assume DROs exercise the authority to impose fines and otherwise punish violators.
“Property” is a legal construct. I can’t imagine a world without songs, stories, movies, computer games, etc. This exercise is imagining a world as Stephan Kinsella imagines it – with intellectual creations, but with no property rights regarding those creations.
These are my opinions on the scenarios presented in your well-organized thought experiment:
1. b. There are plenty of contracts that are not based on property. There are conduct contracts, performance contracts, etc. Someone can very easily be sued for violating a contract. Is there any anti-IP argument against EULA’s?
2. This is a great question, and I don’t know what penalties would be charged against a violater of a EULA if the cost of breach of contract was not spelled out in the contract itself. That’s why my guess is that both parties would very clearly and carefully spell out the penalties in their contracts before signing. If the penalties were obscene, no one would buy the product for fear of accidental breach. If the penalties are extremely slight, people may still feel comfortable making the agreement and purchasing the book, and the added incentive not to share with their friends may just work.
3.d. “None of the above.” Plagiarist “wins” because he never signed a contract with Goodwriter. Copyist would have to settle up on the damages based on her contract with Goodwriter.
4.c. in a sense, if Plagiarist obtained his copy with a EULA directly from Goodwriter. Otherwise, Copyist may still be on the hook for violating her contract, and Plagiarist is just a liar.
5. Both win (in a non-legal sense, since I don’t think that a legal decision would or could be made). Goodwriter may even benefit in the long run. Plagiarist gets some money and recognition (as ill-gotten as it may be), Fan gets to read a book that he/she enjoys. Some people will discover either by research or word of mouth that it was actually a Goodwriter original, and will buy a copy from Goodwriter, along with some of his other works. Fans who discover that Plagiarist is a fraud will most likely not purchase from plagiarist, but instead will now look for the original author of his material. If nothing else, he has a taste that they can appreciate.
6. Both may win (again, in a non-legal sense, and for the same reason). Goodwriter, if a principled artist, would stand up and deny any works falsely attributed to himself, regardless of how good they are, and how much money he could stand to gain from them. However, if he’s as morally corrupt as our friend, the plagiarist, he would stand to benefit from Attributor’s work if it’s any good.
In either case, the author gets press for being a great author, or a target of “fraud” (and I use that term extremely loosely). The Attributors may make a few bucks trying to be him for a short time. If they’re good, they probably come out as the actual author and write under their own identity.
7. See my answer to #5. It would be a variation of that.
If, down the line, you can prove in your works that there is indeed an “Intellectual Space” for which there is a normative case for protection of law, then there will have to be a sustainable way to protect it without a government. In the case that both conditions are met, I would have to revise my opinions above. I don’t see how that could possibly happen, but I suppose the limits of the world are not measured by what fits inside my cranium.
So I’ll continue to watch the debate with great interest and an open mind.
Also, a minor correction for my response to question #4: “if Plagiarist” should be “unless Plagiarist.”
1. and 2. a contract is a conditional transfer of ownership. if their contract says “if you copy, you have to pay X dollars” then, by copying, the condition is satisfied and the ownership of X dollars transfered to goodwriter. if the contract does not contain such a clause, it is consequenceless, thus void.
3. distributor wins in all circumstances, as he does not have a contract, and caused no damage to anybody’s property.
4. and 6. plagiarist/attributor and goodwriter are in no relation whatsoever, plagiarist/attributor wins. the reason is lack of contract or physical damage to property.
5. and 7. fan (buyer) wins. the purchase contract contained the author, which was not fulfilled. the condition for the transfer of the ownership of the price was not met, the buyer is still the legal owner of the money.
However, in 5 and 7, you say Fan wins, because “the purchase contract contained the author”. Who actually wrote the book is a purely intangible concept. The physical structure of the book is the same, regardless of who really wrote it.
Without IP, how could “the author” be the subject matter of a contract?
consider an even more extreme case: i buy a significantly overpriced post card hand drawn by a handicapped child to support him. turns out it is a lie, and there is no child involved. would you say that the contract is fulfilled?
1.) B. Copyist purchased a set of papers from Goodwriter which contained Goodwriter’s ideas on them. Goodwriter parted with the paper and his ideas for a price. He can no longer claim any rights over the paper, and no contract giving Goodwriter control over Copyist’s justly owned property can be given any force. Justice should not allow it.
2.) D. Because of my above opinion.
3.) C. Because of 1 above.
4.) A. & C. Goodwriter certainly was defrauded, however I cannot see any just and reasonable DRO/court awarding any sort of recompense, as the fraud did not involve any loss of property for Goodwriter.
5.) A. Fan was a victim of fraud. She technically could state that had she not been defrauded, she would have never purchased the book from Plagiarist and rather purchased it from Goodwriter, or Copyist, or even Distributor, due to a preference of owning a copy attributed to the true author. The only just and reasonable reward would be the price she paid Plagiarist for the book.
6.) C. Attributor did not defraud Goodwriter, she defrauded everyone who purchased her book, who all now have a rightful claim against her for the same reason that Fan has a case against Plagiarist. As far as Goodwriter is concerned, I find it unreasonable for anyone to expect that their given name, or their reputation for that matter, is a form of property. That notion seems silly to me.
7.) A. Like her case against Plagiarist, Fan only has a right to the money which she parted with under false pretenses.
With that being said, I believe that the harm to property element is a requirement for recompense, and that relieving someone of their property through false pretenses satisfies that requirement.
Since fraud must involve damage to property, I don’t understand how copying, plagiarism or false attribution could be considered fraud, unless there is IP.
However, I’m willing to keep listening. Thanks again for your input Christopher.
“6. That [name of plaintiff] was harmed; and”
The language of that requirement specifically states that the person must be harmed, as opposed to their property. And rightfully so. By having the element be harm to victim, you now allow a hearing for both damages as stated in my answers to the questions of your fable as well as damages to the property of that victim, as harm to his property effectually causes him harm.
All torts, including fraud, must show “damages”, meaning harm to person or property. If there are no damages, there is no case. No harm, no foul, as they say in sports.
All legal rights are property rights. All legal wrongs are property wrongs. That’s my view anyway. What say you?
If there’s no property right to intangible things, then there can’t be damage to property here. And if there’s no damage to property, then there’s no fraud.
Yes, Plagiarist implies that he wrote the book, which is false. But so what? Fan bought a book that she thought was written by Plagiarist. What difference does it make to Fan who actually wrote it? It’s the same book either way.
This is 500 year old common law, by the way, not me.
In my view, law is based entirely on ethics, and ethics is based entirely on morality. If your dementia framework separates ethics from morality, fine. Forget “morals” and substitute “ethics” .
Is plagiarism unethical? Why or why not?
Also, after reconsidering my prior position (regarding Fan’s right to remuneration for purchasing the fraudulent writings), I am now compelled to agree with you (that she has no such legal claim), albeit it for slightly different reasons (one of personal responsibility, as she agreed to the purchase, and should have been aware of all facts before consenting to it).
Ok, so plagiarism is unethical, but not illegal. And it is not possible to punish plagiarists. That is your position, I believe.
Consider the case of a guy who breaks into your house while you are away on vacation. He makes full use of your house, but then leaves. Is this unethical? Is it illegal? How would a libertarian legal system handle trespass?
I fail to see what trespass has anything to do with this. Using someone’s property without their permission is an entirely different matter. Your mental exercise didn’t involve legal property, it involved ideas, which are only considered property because governments historically have enjoyed picking favorites.
Fraud, by definition, requires a showing of damages. That is, damage to PROPERTY.
Simply being dishonest is not fraud. People tell lies all the time. Only when lies are used to deprive another of property does lying become fraud.
No property = no fraud.
You’re saying that because I used the word fraud I’m acknowledging IP as actual property, which I’m obviously not. Remove the word “fraud” and replace it with “act of deceit.” Plagiarism is unethical because it involves deceit, but it cannot be considered punishable because no property was actually harmed.
And I am not using “my” definition of fraud. The definition of fraud is from the common law.
Furthermore, you keep arguing that, in my view, the transaction cannot be considered a case of fraud because I deny that IP is legal property. That does not make any sense. The case complies with the 3 elements:
1. deception – Plagiarist and False Attributor deceived Fan.
2. reliance on the deception – Fan wholly believed what they purported to be true.
3. harm to property – Fan was deprived of her property, her money.
If that does not satisfy the criteria for fraud, then I don’t know what to tell you. The case for Fan isn’t about Plagiarist plagiarizing or False Attributor falsely attributing, it’s about the two of them using deception to make a profit. Your only hypothetical argument against that is:
“Fan bought a book that she thought was written by Plagiarist. What difference does it make to Fan who actually wrote it? It’s the same book either way.”
Is it really the same book? Originality does matter to some people. So why do you get to decide what Fan should and shouldn’t accept? Why do you get to decide which of her values matter? Perhaps Fan values honesty and originality, do you get to tell her that those values don’t matter?
Let’s be honest though, you are not truly arguing from that standpoint. You were using a hypothetical argument to try to induce me to answer in a manner which would help work into your thesis that “the current anti-IP position held by many libertarians is misguided[.]” I understand that, as a music writer/producer, you have a compelling interest in maintaining the monopoly over ideas, so let’s just move to that discussion rather than trying to bait me into typing something that will help you out.
Do you consider ideas to be either scarce or unique? That would be central to furthering the discussion.
“How can the instance where a person sells a knock-off object to someone, under the guise that it is not a knock-off, be considered to be anything other than fraud??? ”
To repeat, fraud requires damage to property. Period. All legal wrongs require damage to property. Period.
Is this clear? Please let this thought resonate within you for as long as necessary until you fully internalize it.
All . . legal . . . wrongs …. require . . . a showing .. . of..
DAMAGES.
OK? Are we clear?
No damages = no fraud.
If you do not acknowledge that fraud requires a showing of damages, then you are incapable of maintaining this conversation.
Fraud requires damage to property.
Plagiarism, false attribution, etc do NOT cause any damage to physical things. The only way to show damages in these cases is by finding a property right to intangible goods.
So if I sell you the Brooklyn Bridge, is that fraud or not? What property is damaged, besides the money I got from you?
If I sell you a magic spell to cure cancer, and it doesn’t work, isn’t that fraud? What is the property that is damaged?
I’m going to pretend that you weren’t just trying to insult me. Your arrogance regarding your opinion on this is quite astounding, and your demeaning attitude toward those with which you disagree is both highly unproductive and not very becoming of one attempting to have a reasonable discussion. If you cannot help yourself but to continue in such a distasteful manner, then I’m done, and will consider you to have conceded the point. If you can help yourself and stop the condescension, we can continue.
But if we do, forget fraud, because it is not central to the point, it is only an ancillary device which you have used to bolster your pro-IP opinion, and you clearly won’t acknowledge the reality of how fraud is being applied especially since 2008.
Furthermore, no, you have not answered my question, which I clearly stated twice. If you refuse to answer it a third time I will consider you unwilling.
DO YOU BELIEVE THAT IP IS EITHER SCARCE OR UNIQUE, AND IF SO WHY???
“Plagiarism would be regulated as any other thing in a free society. It would be banned by some institutions and disregarded by others. This is how most things work, governed by taste, manners, and institutional rules. Plagiarism is not even illegal now! the private sector can manage this stuff just fine. “
I favor a voluntary society, with private firms competing to provide enforcement of contract and tort law. Trespass of intellectual property is AKA “copyright infringement”, and would be proven with evidence, as with any tort case involving any sort of property. “Restitution” is a type of damage award given to disgorge tortfeasors of unjust enrichement, and is applicable to copyright infringement, as well as various torts involving physical property.
I would no more try to destroy a teenage music collector than I would a teenage trespasser on my land, or a teenager who steals a loaf of bread. These violations are not pre-meditated murder, but they are not right either. Let the punishment fit the crime.
Sounds like an evasion. If we were to treat songs like physical property, I don’t think many violations would be detected. You need snooping and restrictive DRM, no?
“Let the punishment fit the crime.”
That would be a positive change.
IP protection and tracking is not perfect, but neither is physical property perfectly protected. It’s the same. The only difference between intangible property and physical property is that one is intangible and the other is physical.
I didn’t say it’s not possible, especially under the current system, for you to spy on me. Just that you need snooping and DRM, unlike physical property. The people who sold me my pants aren’t inspecting my dresser drawers and they didn’t install a remote control zipper.
“IP protection and tracking is not perfect, but neither is physical property perfectly protected. It’s the same. ”
Not remotely. If someone steals my pants, I have to notice that they are gone and, under the current system, I need a warrent and probable cause to search people’s houses or persons. I don’t get to put people under surveillance arbitrarily or forbid them to do certain kinds of computer research. The primary means of securing physical property is just possession. Securing IP requires an incipient police state.
Tracking usage does not require spying. I currently track my usage, and I am not a spy. You have, by implication, just falsely accused me of criminal conduct. That is dishonest and outrageous. Shame on you.
I demand an immediate, public apology.
Alexander Baker
Write Hear Music (BMI)
Dave, there is absolutely no difference, conceptually, between physical goods and intangible goods, except that one is physical and the other intangible. If “spying” invalidates IP, then why doesn’t “spying” invalidate PP?
As to what is and is not allowed, precisely the same laws apply to IP as to PP. Whatever question you have about the enforcement of IP law is precisely the same as the corresponding question with PP, in all cases, with zero exceptions.
Obviously not. But you still need a warrant to search it. Also, if it was a warehouse full of *copies* of someone else’s goods made with raw materials owned by the warehouse tenant, yes I would ignore it. And so would you. Apparently IP and PP are not identical after all?
“If “spying” invalidates IP, then why doesn’t “spying” invalidate PP?”
If PP required spying or monitoring thoughtcrime, this question would make sense. IP does, PP does not.
“As to what is and is not allowed, precisely the same laws apply to IP as to PP.”
Are you discussing your ideal world, or the one we inhabit? PP does not require DMCA, persecution of Napster, pirate bay or Kim Dotcom, granny lawsuits, etc.
“Whatever question you have about the enforcement of IP law is precisely the same as the corresponding question with PP, in all cases, with zero exceptions.”
Well then. DMCA or no DMCA? Locksmiths can exist or must go out of business? NSA can hack my PC without a warrant or not? etc. Saying “it is the same” doesn’t tell me what you think it is or what you think it ought to be. If we use the same law for both, DMCA and other laws specific to IP and DRM should be repealed, since their application to PP would cause a disaster.
Also, if it was a warehouse full of *copies* of someone else’s goods made with raw materials owned by the warehouse tenant, yes I would ignore it. And so would you. (Not if they were manufactured using the productive capacity owned by another, e.g. an assembly line or master song file).
Apparently IP and PP are not identical after all? (Yes, they are perfectly identical, in every case, without exception).
I invite you to attempt to find a single example where physical property and intellectual property operate differently. You will fail.
Baker : “fraud requires damage to property.”
Burns: “So if I sell you the Brooklyn Bridge, is that fraud or not? What property is damaged, besides the money I got from you?”
Baker: “If you contract to sell me the Brooklyn Bridge, and fail to deliver, I am damaged in the amount of 1 Bridge. That is damage to property. I have 1 bridge less than I should. Alternatively, you can measure my damages as the money which was my property before I transferred it to you. Remember, only property can be the subject of contract”.
Burns “If I sell you a magic spell to cure cancer, and it doesn’t work, isn’t that fraud? What is the property that is damaged?”
Baker: “There is no magic, therefore no property right in magic spell. Contract is void for fraud (Deception – reliance – harm). Damages are the amount of money (property) I paid you.”
Burns: So as long as money is involved in the transaction, plagiarism or misattribution can be fraud, even if there is no copyright. But this seems to contradict what Baker wrote previously: “Christopher, you’re right. Plagiarism is fraud. This proves intellectual property is valid.”
Can I sell you the Brooklyn Bridge, and actually deliver to you the deed to a plank across a creek in Texas? You paid for a bridge, you got a bridge.
“If there is no IP, then it makes no difference who really wrote the book. Thus, who wrote the book cannot be the subject of a contract.”
I need to see an argument supporting that conclusion. You claim that ideas can’t be owned, but we know who invented calculus, no one ever claimed to own it, yet the correct authorship and historical sequence was considered interesting and important by many people. No one has denied that books are goods or that they can be described, why can’t they be the subject of a contract?
What about work contracts, where is the property? If a janitorial service signs a contract with me, what is the property they are selling me? It is a service. Contract requires something to be exchanged, but the money is enough.
Service contracts are an exchange of property titles, like all contracts. When you work for another, you are renting your body, which is your right, because you have a property right in your body. If there was no property right in your body, you would have no basis to contract for work.
One may only contract with that which is property. Period. No exceptions.
No property = No contract.
No property = No fraud.
So you favor a change to the current system, requiring search warrants.
“(Not if they were manufactured using the productive capacity owned by another, e.g. an assembly line [...]”
But this is an impossibility. Your assembly line analogy, actually to be analogous, requires that someone can “use a factory” without being physically present and without causing congestion or wear on the machinery or using the electricity of the factory. Which cannot happen. So in effect, you are saying you would ignore it, except in the case where something impossible happened.
“I invite you to attempt to find a single example where physical property and intellectual property operate differently. ”
Seems to me they operate differently in every case. But that is not what I need to show. If we view them as identical, IP is a degenerate case of PP, where owning a copy gives you the capability to make more copies. Particular copies can be owned if the physical media that contain them can be owned (e.g. copies transmitted by radio are not owned). Ideas, including the complex of ideas that forms the design of physical goods, should not be owned. We could construct an effective system to enforce “property rights” in ideas, but we should not because it would require draconian and intrusive mechanisms for detecting or preventing violations. This regime treats PP and IP and ideas the same, does not require that I show any difference in their operation.
I think Baker is being metaphysical again, but let it slide. My point is, if you produce a song and sell it to me, the productive capacity I have gained possession of is physically distinct from the productive capacity you used to produce the song. I need not use the same physical recording or components or anything other than the item you sold me and other equipment or energy I can obtain from other sources, if we limit our discussion to the real world and exclude intellectual space. Nothing of yours in the real world is used, touched, worn out, or consumed when I produce a copy of your song from the copy you sold me. All of the trespasses and usage and wearing out that involves something belonging to you occurs only in “intellectual space.”
I can do the same thing with a physical object, buy one and copy it using my own energy, materials, machinery, 3-d printer, etc. Since Baker rejects patents, he contradicts himself. If we adopt his metaphysics, and claim that IP is just like PP in all cases, we can assign intellectual objects in intellectual space corresponding to the design of physical objects. Why is it the case that the intellectual object corresponding to a song can be owned, but the intellectual object corresponding to a chair cannot?
A copyright is actually homesteading.
Property must be rivalrous, rivalry must be physical, thus property must be physical. QED.
A copyright protects a thing that has ACTUALLY been built.
See the difference?
A can describe a method for songwriting. You can’t copyright the method. If you apply the method and actually write a song, you may copyright the song.
See the difference?
The method described by your spec would be subject to patent under current law. Because a patent is merely a description of how homesteading could occur, rather than an act of homesteading itself, patent not valid property.
The exact patten of words and symbols present in the spec is subject to copyright, like any book.
Do you see the difference? There are concepts and ideas conveyed by the spec (not copyrightable). There is an exact pattern of words and symbols fixed in a document (copyrightable).
I think part of the problem is that Kinsella and his supporters have insisted on lumping copyright and patent together as “IP”. They are completely different things. Let’s unbundle them, please.
Great question! Thank you.
Isn’t an MP3 like an instructional book about how to reproduce a song? Isn’t sheet music like an instructional book on how to play a song? If I copyright the MP3, wouldn’t an unauthorized songbook containing sheet music for the same song be an infringement of copyright? Many possible performances, recordings, formats, notations, but only one song. The input to copyright may be a specific pattern, but the process proceeds as if that pattern established ownership of a braod set of possible patterns. The connection between these patterns is some metaphysical Platonic ideal. It is an idea, or complex of ideas. This is what the copyright owner actually owns. But the line between this and owning ideas is purely arbitrary. I can express any idea as a pattern of words or other notation. A songwriter can own a song, a novelist can own characters and settings, but a mathematician can’t own theorems or mathematical concepts. It’s just arbitrary. Why can’t physical objects be copyrighted? Or maybe they can, even worse. Sears could make me sign a EULA for my screwdriver. Yikes.
A song is copyrightable because the song is the good. A method is not copyrightable because a method describes how to make a good, but is not the good. It is certainly possible to copyright a specific pattern of information describing a method. But that is not the same as copyrighting the method.
To repeat, all property requires arbitrary boundaries. If this does not invalidate physical property, it must not invalidate IP.
What if I paraphrase that as, “an MP3 is not copyrightable because an MP3 encodes how to reproduce a performance of a song, but is not the song?” Can you see why it is not clearing up for me?
‘To repeat, all property requires arbitrary boundaries. If this does not invalidate physical property, it must not invalidate IP.’
Physical boundaries are imprecise, historically contingent, but not arbitrary. Was that what you meant? Does the concept of a boundary even make sense in intellectual space? What is near, what is far?
I just noticed that your profile page lists your replies at the wrong time, presumably because of our timezone difference. Everything you do happened at least 4 hours ago. Does my profile list my responses as happening in the future? (chuckle)
Dave, this conversation has been very illuminating to me. You obviously have a blind spot for the property rights of others. You just don’t understand the cruel damage you inflict with your aggression.
Please understand. We are talking about real damage, to real people. You openly advocate intentional harm. You are, therefore, and intellectual sociopath. I fear you.
I wish you would explain it. Thinking of a song as a point in this space doesn’t work well. I’m moving toward thinking of a song as a shape. Different performances would be nearly identical shapes, intersecting perhaps in many places and in close proximity elsewhere. A mashup or a song containing a sample from another song would intersect the original songs. So space can be continuous, but a song isn’t necessarily a single connected shape, it can be a collection of shapes. But I still don’t get the dimensions.