Intellectual Space: Who Owns the Car? You Be The Judge!

s a thought experiment, suppose you were judge / jury and asked to decide a dispute about ownership of a car. Suppose we live in a Kinsellist society, with respect for property rights in physical things, but no observance of patent, copyright, or any form of IP.

Albert possesses a car, which appears to be a brand-new “Pluto 4000″, a well-known sophisticated car model manufactured by Brian Motors. Albert claims he built the car with his own hands and own materials, from scratch.

Brian owns the car factory, and does business as “Brian Motors”. Brian claims that Albert sneaked into the factory and made the car-copy using the factory’s machines. However, there are no security photos or fingerprints directly implicating Albert.

Albert’s car is an exact match of the other Pluto 4000 model cars which have been produced in Brian’s factory. Brian asserts that it is literally impossible for anyone to manufacture a Pluto 4000 car-copy without access to the factory, thus Albert must have trespassed. Albert denies ever going into the factory, and sticks to his story about making the car from scratch.

Who do you believe? Why?

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Sarah Meyer September 16, 2014, 4:46 pm Reply
Ooh fun, I’ll play. Albert owns the car.
Albert owns the car because he has possession of it. Unless Brian can somehow prove that Albert stole the car from him, a reduction in inventory – a missing asset – he has no claim on Albert’s car. Why do we care how the car was made if nothing was stolen from Brian?
Now, we may care how the car was made if Albert begins miraculously producing multiple cars and selling them for profit… but your story only indicates that Albert is in possession of one car which he presumably is not selling for a profit.
- Alexander Baker September 16, 2014, 5:06 pm Reply
  @ Sarah – I’m not clear on your position. Are you saying trespass is not illegal, or that the match between cars is insufficient proof of trespass?
  - Sarah Meyer September 16, 2014, 6:03 pm Reply
    Your question was “who owns the car” not, “did Albert trespass”… besides, if Albert did trespass I’m not sure the ownership of the property would transfer back to Brian anyways. Albert still owns the car.
    - Alexander Baker September 16, 2014, 6:20 pm Reply
      Good point Sarah. Indeed I was assuming that trespassory use of the factory would confer ownership of produce to the factor owner. That is my understanding of libertarian principles, and of real-world common law. Perhaps you haven’t had much prior occasion to consider trespass. It isn’t theft. Nevertheless, trespass is generally considered to be an actionable property violation.
      My most important questions were: Who do you believe, and why?
      - Sarah Meyer September 16, 2014, 6:51 pm
        Well you’re right in that I haven’t had much occasion to consider trespass…. I do recognize that your soapbox issue is intellectual property – but in the context of the thought experiment you put out here, there is a tangible property being considered. Assuming that there is no physical evidence of Albert’s trespass, if I were on the jury, I would rule in favor of Albert. I believe that if he says he did not trespass he did not, because the burden of proof lies with Brian. Brian can say all day long that nobody else could produce his product without illegally using his factory, but I don’t see how he could prove such an assertion. The existence of a copy does not necessarily translate to the existence of trespass, and especially if there is zero evidence of material theft…. I think I understand the logical reasoning you’re trying to assert as it would then relate to intellectual property – but they are apples and oranges in my opinion.
      - Alexander Baker September 16, 2014, 7:23 pm
        @ Sarah – Fair enough, and well put. If I may, let me try to elaborate just a little, to see if it might change your view.
        Suppose that at trial, Brian provided expert testimony from metallurgists, machinists, miners, electrical engineers, chemists, physicists, economists. All of these experts testified that it would take millions of man-hours to produce a car from scratch, and even so, such a car could not possibly be an exact match for the Pluto 4000, because such a match is only possible from using the precision made machines uniquely present in Brian’s factory.
        In response, Albert has no explanation, other that to repeat his denial that he ever entered Brian’s factory.
        Has Brian now met his burden of proof?
      - Sarah Meyer September 17, 2014, 3:50 am
        Given all of the evidence now presented by Brian, I am persuaded to believe Brian over Albert regarding the trespass… but I’m still not quite seeing how the ownership of the car would transfer to Brian by virtue of trespass… if Albert made it, and it didn’t “cost” Brian anything. I mean, Albert’s presumably not mass-producing these cars is he? That would change the perceived damage to Brian wouldn’t it?
      - Alexander Baker September 17, 2014, 4:41 am
        Common Law has evolved various ways to try to “remedy” the injured party. “Damages” is one type of remedy, having to do with the measurable loss by the injured party. Brian will argue that 1 car made by Albert is one less car he can sell on the market.
        “Replevin” is another remedy which seeks to disgorge a wrong-doer of his “unjust enrichment”.
        If you have trouble accepting that use of the factory costs Brian, think about a hotel. If a trespassor sleeps in a hotel room that would have otherwise been vacant, does he owe the hotel owner the usual rent?
        In any case, thank you for your input. My true aim with this article is simply to demonstrate that the existence of a mass-produced product is proof of the existence of, and use of, a factory.
      - Sarah Meyer September 17, 2014, 5:13 am
        Hey I’m quite consciously asserting my position as “on the fence” – which is better than I can say for most around here who really, really like to get on you for your IP position. Something inside my gut just tells me that I shouldn’t use somebody else’s creative works unless they want me to… many many many artists of all types offer their works for viewing or listening totally free of charge, or through subscription based services. This is how folks make their living. It just doesn’t feel right to say they don’t “own” their unique works. … That being said, things like movies, television shows, mass produced music backed by huge production companies – I figure once a certain critical mass has been reached then the art kind of morphs into a publicly consumable item at which point could be and often times is consumed without royalties. Is it right?? Eh, I don’t know. Doesn’t seem like it really hurts anybody. If I download a song from a piracy website and listen to it on my own iPod and don’t sell it, at the same time millions of other people around the world are hearing the same song on the radio, or watching the video on youtube, or whatever – who on earth did I hurt??
Stephen Davis September 16, 2014, 5:13 pm Reply
Your focus in in the wrong place, as usual.
What matters is whether Albert built the car with his own materials or not. That’s it. According to your “logic,” if you first built the car, and Albert copied your design and built it with his own materials, you homesteaded it!
- Alexander Baker September 16, 2014, 5:45 pm Reply
  @ Stephen – We agree then that trespass is illegal. Do you think the match between cars is sufficient to prove trespass in this case? A & B can’t both be telling the truth. Who do you believe, and why?
  By the way, real-world disputes very often come down to making these sorts of inferences. Who do you believe, and why?
  - Stephen Davis September 16, 2014, 5:54 pm Reply
    Just because real-world disputes sometimes come down to making decisions in the absence of critical information doesn’t mean it’s a good basis for an argument about property rights.
    Did Albert build the car with his own materials or not? That’s what matters.
    - Alexander Baker September 16, 2014, 6:01 pm Reply
      Right. In this case, did Albert build the car with his own materials, or not?
      - Stephen Davis September 16, 2014, 6:01 pm
        That certainly is the critical question…
      - Alexander Baker September 16, 2014, 6:24 pm
        Is there a preponderance of evidence (i.e. 51%) to prove Albert is liable for trespass?
        How about “beyond a reasonable doubt” (99% sure)?
      - Stephen Davis September 16, 2014, 6:49 pm
        I don’t know.
        I do know that the answer is completely irrelevant to proving the case for “IP.”
      - Alexander Baker September 16, 2014, 7:10 pm
        @ Stephen – This hypothetical is an example of what is called “circumstantial” or “indirect” evidence. A bloody shoe-print is indirect evidence that a person wearing a particular size and brand of shoe stepped in blood. But it is also possible that a talented artist came by and carefully made a painting of a shoeprint in blood. Are these two possibilities equally likely?
        Clearly you are unwilling to participate in this hypothectical, and this choice of yours is itself indirect evidence. From your choice, I draw the unmistakeable inference that you FEAR it.
      - Stephen Davis September 16, 2014, 7:15 pm
        You’re right, I’m unwilling to participate in this hypothetical. It has nothing to do with fear. If we’re talking about property rights, the question is whether Albert built the car with his own materials. If he did, he owns it. If he didn’t, he doesn’t own it.
Dave Burns September 16, 2014, 10:38 pm Reply
If the factory has a record of the VIN, that is evidence that the car was produced by the factory. They would also have records of what happened to the car after it was manufactured, as in it was sold or it went mysteriously missing.
If the VIN is missing from the car, I suppose Albert might produce evidence that he has the necessary tools, materials, and skills to duplicate the car. If not, I would be pretty skeptical of Albert’s claim.
If the existence of the car is the *only* evidence, I don’t think Brian would bother prosecuting for trespass. Why aren’t we discussing theft? Given what little I know about how cars are made, it seems like it would be nearly impossible for Albert to use the factory to make a car by himself and get away without leaving any evidence. It seems much more likely that he managed to steal a car that was made in the ordinary way.
Is this supposed to relate to copyright in some way? What is the relevance of Kinsella to this story?
- Alexander Baker September 16, 2014, 11:08 pm Reply
  The relevance is to infer the existence and use of a factory from the existence of a mass-produced product.
  - Dave Burns September 17, 2014, 12:43 am Reply
    In other words, none.

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Who Owns the Car? You Be The Judge!

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