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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.
Wednesday, September 24, 2014
Is a Recipe both a Factory and a Widget?
Saturday, September 20, 2014
Stephan Kinsella on Alexander Baker
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:
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.
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.
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:
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:
Can you provide an example where damages arise from something other than a property injury?
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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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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.
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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Top Stephan Kinsella Supporter Admits Hoax . . . Finally
I’ve had lengthy philosophical discussions with Stephen Davis, a
vocal and energetic support of Kinsellist ideology. Our longest thread
ever is in the comments to this article:
homesteadip.liberty.me/2014/09/08/roger-browne-deconstructed/
Finally, at long last, Stephen Davis had the intellectual honesty to admit what I’ve been saying all along. Kinsella’s anti-IP theory is simply an elaborate philosophical hoax. Kinsella has cleverly built his conclusion (property must be physical) into his premise (“rivalry” must be physical, “use” must be physical, etc.).
After following him down every intellectual dark alley and up every intangible steep mountain, and showing at every turn that IP behaves identically to PP, Stephen Davis finally stated the logical rule upon which he bases his arguments:
Thank you, sir. You are a gentleman and a scholar. Kinsella will not be happy, of course. But you can sleep well knowing you did the right thing.
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homesteadip.liberty.me/2014/09/08/roger-browne-deconstructed/
Finally, at long last, Stephen Davis had the intellectual honesty to admit what I’ve been saying all along. Kinsella’s anti-IP theory is simply an elaborate philosophical hoax. Kinsella has cleverly built his conclusion (property must be physical) into his premise (“rivalry” must be physical, “use” must be physical, etc.).
After following him down every intellectual dark alley and up every intangible steep mountain, and showing at every turn that IP behaves identically to PP, Stephen Davis finally stated the logical rule upon which he bases his arguments:
If X isn’t physical, X cannot be property.
-Stephen Davis
Thank you, sir. You are a gentleman and a scholar. Kinsella will not be happy, of course. But you can sleep well knowing you did the right thing.
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Alexander, the premise is not built into the conclusion. It takes
careful thought to realize that property rights are only necessary in
physical things. Your arguments are based on an alternate universe in
which intangible things are analogous to physical things, but, here on
planet Earth, they are not.
Have you read chapter 2 of Hans-Hermann Hoppe’s _A Theory of Socialism and Capitalism_?
Have you read chapter 2 of Hans-Hermann Hoppe’s _A Theory of Socialism and Capitalism_?
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It doesn’t take much thought at all to understand your / Kinsella’s argument. It is:
1. Premise 1 – Property must be rivalrous (see Hoppe, et al.)
2. Premise 2 – Rivalry must be physical (assumed, by definition).
3. Conclusion – Therefore property must be physical. QED.
That’s it. Your conclusion is built into Premise 2.
Here are some reasons why, HERE ON PLANET EARTH, the analogy between physical and intangible things is appropriate:
1. Intangible objects can affect the outcome of human events, just like physical objects.
2. Intangible objects have discernible borders, just like physical objects.
3. Intangible goods are brought into existence by mixing labor with owned physical goods (i.e. homesteading), just like physical goods.
4. Copies of intangible goods can be mass-produced, just like physical goods.
5. The quantity of copies is finite, and limited by human effort, just like physical goods.
6. People voluntarily contract to buy and sell intangible goods, just like physical goods.
You have given 0 reasons why the analogy is invalid.
Yes, I love Hoppe’s – “A Theory of Socialism and Capitalism.” One of the more important points is that abolishing the property rights in producer goods will lead to the “Calculation Problem” and the “Incentive Problem”.
Curiously though, Hoppe does not provide a definition of “scarce” in Chapter 2. I submit to you that all scarcity derives from the limitation on human effort.
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“Premise 1″ is a recognition that the entire reason property rights are necessary is because of the existence of rivalrous things. This is a seemingly simple but critical insight.
As Hoppe says, “For a concept of property to arise, there must be a scarcity of goods. Should there be no scarcity, and should all goods be so-called “free goods” whose use by any one person for any one purpose would not in any way exclude (or interfere with or restrict) its use by any other person or for any other purpose, then there would be no need for property.”
So, Hoppe defines a “scarce” good as a good whose use by any one person for any one purpose would in some way exclude (or interfere with or restrict) its use by any other person or for any other purpose.
He says: “I might, for instance, want to use my body to enjoy drinking a cup of tea, while someone else might want to start a love affair with it, thus preventing me from having my tea and also reducing the time left to pursue my own goals by means of this body. In order to avoid such possible clashes, rules of exclusive ownership must be formulated. In fact, so long as there is action, there is a necessity for the establishment of property norms.”
Also: “[C]hoosing always implies the incurrence of costs: foregoing possible enjoyments because the means needed to attain them are scarce and are bound up in some alternative use which promises returns valued more highly than the opportunities forfeited.”
Notice the reason why property rights are necessary in “scarce” goods: one person can’t use a “scarce” good for one purpose without “preventing” another person from using it for another purpose. This is what is meant by “conflict” over “scarce” goods; one person is prevented from using particular “scarce” means because it is “bound up in some alternative use.”
“Premise 2″ is based on the insight of “Premise 1.” Only because of the existence of “scarce” goods are property rights necessary, and the nature of “scarce” goods is such that they must be physical.
The beauty of ideas, knowledge, information, patterns, recipes, etc. (i.e., intangible things) is precisely that they are not “scarce” in this sense. Human action may be limited by the nature of our bodies and the physical things around us, but thankfully we can all use the same intangible things simultaneously without “preventing” other people from using them. If I want to use the same intangible thing as you, that thing is not “bound up in some alternative use”; you are completely free to use it and my actions do not “prevent” you from doing anything.
Let’s say, for the sake of argument, that your six claims are correct and that they’re relevant to the discussion of property rights. So what? The question is, why are property rights necessary in intangible things?
As the explanation above makes clear, intangible things are not “scarce” in the sense that physical things are, and people can’t “conflict” over them in the sense that they can over physical things. Therefore, property rights in intangible things are not necessary, and we should be glad for this!
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@ Stephen -
Again, thank you for your honesty. You are stating again that your premise (#2 above) includes your conclusion (that property must be physical). This is absolutely disallowed in logical argument. You are free to say whatever you want on this issue. But it is not correct to characterize your writing as “an argument”.
Rather, you are accepting as SELF-EVIDENT, A PRIORI that “physical” is a necessary component of “scarce” and / or “rivalrous” and / or “use”.
Assuming a priori, self-evident facts is not necessarily wrong. Austrian theory is founded on such. However, it is disingenuous to disguise an a priori assumption as an argument. You and Kinsella should have the intellectual honesty to label your position for what it is: an assumption, not a conclusion.
As for me, I am not willing to assume that intangible things are non-scarce, non rivalrous. As I have argued, intangible goods are scarce and rivalrous for exactly the same reason as physical goods – the limitation on human effort.
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Alexander, do you accept Hoppe’s definition of a “scarce” good?
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What definition? Again (2nd time):
Curiously though, Hoppe does not provide a definition of “scarce” in Chapter 2.
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A good whose use by any one person for any one purpose would in some way exclude (or interfere with or restrict) its use by any other person or for any other purpose.
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You are using “use by one does not interfere with use by another”. Which is my definition of “rivalrous”, from a year ago. See “Definitions of Key Terms”.
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That wording is taken exactly from Chapter 2 of Hoppe’s _A Theory of Socialism and Capitalism_ and I’m asking whether you agree with it. Are you saying that, yes, you agree with it?
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Obviously I agree with the definition of “rivalrous”, because it is in my definitions.
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Ok, great. So what is your definition of “interfere”?
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Interfere – A human action that has the effect of reducing the owner’s use below 100% of theoretical maximum use.
What is YOUR definition of “interfere”, just so I can demonstrate the logical implications of each definition.
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Both Hoppe and I are using “interfere” in the usual sense: to prevent (a process or activity) from continuing or being carried out properly.
This is why Hoppe uses the language “to exclude, interfere with, or restrict.” One person’s use of a thing “prevents” another’s; one person’s use of a thing means for another person that that thing is “bound up in some alternative use.”
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OK, I accept that definition of “interfere”, as long as you don’t mean “physically” exclude, “physically restrict, etc.
Go on.
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Ok. This is where you lose me.
If one person’s use of a thing “prevents” another’s, and if one person’s use of a thing means for another person that that thing is “bound up in some alternative use,” how can that apply to anything other than physical things? How can one person’s use of ideas, knowledge, information, patterns, recipes, etc. “prevent” another’s use? If one person is using ideas, knowledge, information, patterns, recipes, etc. and another person wants to use them, how can it be said that those things are “bound up in some alternative use”?
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You are failing to appreciate that the pattern is two different things – the factory AND the widget. You only want to consider the widget. You are absolutely correct, your use of one widget does not interfere with my use of another widget.
When you copy, YOU ARE NOT USING THE WIDGET. YOU ARE USING THE FACTORY.
If you copy a bicycle, you do not interfere with the bicycle owner. You interfere with the factory owner.
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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?
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The existence of a mass-produced consumer good is proof of the existence and use of a factory.
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@ Stephen -
I appreciate you weighing in on this:
The existence of a mass-produced consumer good is proof of the existence and use of a factory.
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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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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- 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.
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@ 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?
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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.
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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?
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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.
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@ 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?
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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?
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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.
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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??
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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!
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@ 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?
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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.
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Right. In this case, did Albert build the car with his own materials, or not?
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That certainly is the critical question…
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Is there a preponderance of evidence (i.e. 51%) to prove Albert is liable for trespass?
How about “beyond a reasonable doubt” (99% sure)?
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I don’t know.
I do know that the answer is completely irrelevant to proving the case for “IP.”
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@ 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.
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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.
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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?
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The relevance is to infer the existence and use of a factory from the existence of a mass-produced product.
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In other words, none.
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Way to butcher that strawman.
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?
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.
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.
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.
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?
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.
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?
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.
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.
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.”
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.
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.
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?
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?
Note: This is a joke. (Not guaranteed to be funny to all persons on Earth.)
You are perfectly free to have this view. But let’s please call it what it is: Intellectual Communism.
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.
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.