Hardcore libertarians: explain your anti-IP-rights position to me.

[toast]

Disclaimer: I'm generalizing the anti-IP-rights position to all hardcore libertarians because I've seen several who hold this position. If you believe anti-IP-right are not consistent with what it actually means to be a libertarian, then correct me. I still want to know what people who do hold this position think, though.

Suppose I am a master chef in a small village. My food preparation method is healthier and tastier than other alternatives. There is no way to reverse-engineer my food preparation method from the food I serve. I want to write a cookbook. It will take me 500 hours to write this cookbook, in which time I could just make more food to earn me some money. My secret recipes are so good that it is clear that society as a whole will be far better off if more chefs could utilize my techniques than if I spent the 500 hours cooking better meals for a small number of people. You would agree that it is better if this method was known to more people.

What incentive do I have to write this cookbook? If I try to publish even a single copy, any established book publisher with more efficient book-printing resources than I do will be able to prevent me from earning any money while earning a hefty profit themselves. The only possible solution I can think of is the idea of selling my final draft of the cookbook to a publisher - that is, selling the right to be the first person (besides myself) to see what I have written so that they can publish it. The publisher would only offer me prices comparable to what I could make with IP protection is if they were able to read it first, in which case I would have to have some contract protecting my IP rights with this company (but again, this requires a government to enforce this contract, which means IP is something the government has to recognize).

edit: Also, assume the IP protection I'm talking about is temporary (enough for what I make to make the time investment worth it), not something that would give me permanent control (maybe like music copyright, but shorter and without the draconic punishments from infringement).

(also, sorry for posting in the wrong forum, but I don't have privileges to post everywhere yet)

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[Brutus]

Why not go somewhere focused on the subject or read Kinesella's book http://www.againstmonopoly.org/index.php?perm=593056000000003082

http://www.againstmonopoly.org/index.php?perm=593056000000001487

[toast]

I figured perhaps someone on this forum could give a concise tl;dr to highlight the main points. Obviously if I want an in-depth explanation and understanding I should turn to existing literature, and if I think it's interesting/relevant enough I certainly will.

[JoelKatz]

I am one of the world's finest doctors who is considering retiring. If I continue working, I'll probably save three or four hundred lives. I've always wondered what it's like to kill someone with my bare hands though. I'm willing to forgo retiring if I get to kill someone. Society will be, overall, better off if I kill some random homeless guy. So why shouldn't I do that?

In short: Libertarians are not receptive to cost/benefit analysis questions with regard to rights. One of the major reasons they oppose IP is that they see it as fake 'rights' enforced only because of a cost/benefit analysis. By that logic, why shouldn't I have the right to steal $100,000 from Bill Gates? I need it a lot more than he does.

(I am not anti-IP, by the way. But I think I understand the Libertarian position.)

[toast]

I am a doctor who is considering retiring. If I continue working, I'll probably save three or four hundred lives. I've always wondered what it's like to kill someone with my bare hands though. I'm willing to forgo retiring if I get to kill someone. Society will be, overall, better off if I kill some random homeless guy. So why shouldn't I do that?

In short: Libertarians are not receptive to cost/benefit analysis questions with regard to rights. One of the major reasons they oppose IP is that they see it as fake 'rights' enforced only because of a cost/benefit analysis. By that logic, why shouldn't I have the right to steal $100,000 from Bill Gates? I need it a lot more than he does.

(I am not anti-IP, by the way. But I think I understand the Libertarian position.)

Killing someone is a direct violation of the 'no violence' foundation that libertarians have. If you really wanted to masturbate all day instead of saving people's lives then go ahead.

But your main point is that the publisher's rights to make money by printing a book I wrote is more important to preserve than the healthier (and tastier!) lives people will enjoy if I find it worth my time to write this book. Basically, libertarianism is inherently non-utilitarian. Am I correct?

[JoelKatz]

But your main point is that the publisher's rights to make money by printing a book I wrote is more important to preserve than the healthier (and tastier!) lives people will enjoy if I find it worth my time to write this book.

Yes. It is more important to have the massive long-term benefits of living in a society that can be relied upon to protect rights than the much smaller benefits of occasionally violating them.

Basically, libertarianism is inherently non-utilitarian. Am I correct?

In a sense yes and in a sense no. Libertarians won't compromise their values for short term utilitarian benefits because they believe it's to everyone's long term benefit not to do so. To use this example, sooner or later people probably will figure out his secret recipe, and with no IP, once they do so, they can spread it far and wide.

(Again, I think IP rights are real rights that Libertarians should expect governments to protect like all other rights. So I am not explaining my own position.)

[toast]

But what if anyone who discovers the recipe enjoys higher profits if the recipe is not publicly known? Then nobody will ever benefit from that knowledge except for the people lucky enough to discover the recipe, whereas if there were short- or medium-term IP protection laws, I would find it profitable to share my recipe with everyone sooner (more people enjoy its benefits for longer periods of time) AND after I have earned some money for my time and energy the recipes are now available for everyone to use (just like they would if some kind soul discovered the recipe and decided to give it away to everyone rather than profit from it). Having IP protection seems strictly better, under the assumption that IP laws are not extreme (like many are now).

Edit: At the very least, have NDA agreements be enforceable by law so I can go around and try to sell my book to different publishers without them printing what I show them without my permission.

[JoelKatz]

But what if anyone who discovers the recipe enjoys higher profits if the recipe is not publicly known? Then nobody will ever benefit from that knowledge except for the people lucky enough to discover the recipe, whereas if there were short- or medium-term IP protection laws, I would find it profitable to share my recipe with everyone sooner (more people enjoy its benefits for longer periods of time) AND after I have earned some money for my time and energy the recipes are now available for everyone to use (just like they would if some kind soul discovered the recipe and decided to give it away to everyone rather than profit from it). Having IP protection seems strictly better, under the assumption that IP laws are not extreme (like many are now).

If you get sufficiently creative, you can probably create some bizarre implausible hypothetical where for that one thing we are better off with IP laws. However, Libertarians believe those laws violate rights and most of them also believe that they overall tend to discourage innovation. (I think they are wrong on both counts.)

Edit: I think that most Libertarians do believe that NDA agreements should be enforceable against parties, but not against non-parties. You would have to enter into an NDA to see a movie. And it would be almost impossible to protect anything that would necessarily be disclosed to the public. (For example, a patent on one-click ordering.) The way I try to ease Libertarians out of their anti-IP position is to describe to them all the other cases where we permit contracts to be enforced against third parties and argue that one person should not be allowed to benefit from a second person's violation of a contract at the expense of the beneficiary of that contract.

[toast]

Libertarians believe those laws violate rights and most of them also believe that they overall tend to discourage innovation. (I think they are wrong on both counts.)

I am interested in hearing how IP laws discourage innovation. I can think of many real-world examples of how innovators would not have made any money (because let's face it, feeling good for making the world a better place is not sufficient reward for many) for significant time investments.

[haydent]

there is no such thing as a totally unique idea, all ideas are formed from other ones that exist in the public space, IP laws prevent ideas from getting into the public space and thus restrict new ideas and innovation.

the original founding fathers were against it, but disney stretched it out from about 20 years originally to a lifetime to now almost indefinite...

[toast]

there is no such thing as a totally unique idea, all ideas are formed from other ones that exist in the public space, IP laws prevent ideas from getting into the public space and thus restrict new ideas and innovation.

Wait, what? Why does the fact that all ideas are combinations of old ideas have anything to do with the fact that if people do not have incentive to come up with new ideas it is worse for society as a whole than if they did? To your second point: Isn't it better for ideas to temporarily benefit their creators than for them to not exist at all (remember, I'm assuming the IP laws would be reasonable, not like they are now).

[rob80]

imho, Larence Lessig's 'Free Culture' is a good listen if you're interested in the subject:  http://randomfoo.net/oscon/2002/lessig/

Personally, I like IP-Rights in the short term, but the current copyright system goes way too far.  Age+70 I think it is?

[malditonuke]

One of the major reasons they oppose IP is that they see it as fake 'rights' enforced only because of a cost/benefit analysis.

From what I have read, the main reason IP is opposed by libertarians is that they see it as conflicting with physical property rights.

The bottom line with libertarianism is minimizing conflict over scarce resources.  IP laws apparently increase the conflict over scarce resources and are therefore harmful laws.

[haydent]

Isn't it better for ideas to temporarily benefit their creators than for them to not exist at all (remember, I'm assuming the IP laws would be reasonable, not like they are now).

im not hardcore left,as you request, and i think we all agree that short term is fine. as also said by prev post its just gotten a little out of hand.

[TerraHertz]

I have a vehement anti-IP position, but not the time to explain just now, sorry. Maybe later. It's based on fundamental properties of the universe (the nature of matter, energy and data) as well as long term social benefits.

If you feel like a read, here's an SF short story I wrote last year. It isn't primarily IP-rights related but does touch on that issue briefly.
  http://everist.org/texts/Fermis_Urbex_Paradox.txt

Oh, and yeah. Absolutely THE solution to the Fermi Paradox. Seriously. For anyone who cares about such things.


Ah, the unexpected things one comes across while dipping in and out to clock up login time before _really_ being allowed to post. </grumble>

Now, I must back to work.

[JoelKatz]

I am interested in hearing how IP laws discourage innovation.

Do you mean how the actual IP laws countries have actually discourage innovation? Or do you mean a theoretical argument for why IP laws will always tend to discourage innovation? For the former, look at the issues with sampling in music, mashups in videos, and orphaned works in copyright generally.

I can think of many real-world examples of how innovators would not have made any money (because let's face it, feeling good for making the world a better place is not sufficient reward for many) for significant time investments.

Sure, and there are also many stories about how the guy who did the real, hard work lost out because someone else stretched a patent to cover his idea.

But, again, these arguments aren't really that persuasive to Libertarians. If they're not convinced that IP rights are 'real rights', they don't want the government enforcing them.

[toast]

Do you mean how the actual IP laws countries have actually discourage innovation? Or do you mean a theoretical argument for why IP laws will always tend to discourage innovation? For the former, look at the issues with sampling in music, mashups in videos, and orphaned works in copyright generally.

I mean the theoretical argument for why IP laws will tend to discourage innovation. I can see pretty clearly why existing laws do that =]

Sure, and there are also many stories about how the guy who did the real, hard work lost out because someone else stretched a patent to cover his idea.

So this is a discussion of how to successfully implement IP law, not an argument against the idea of such a law.

But, again, these arguments aren't really that persuasive to Libertarians. If they're not convinced that IP rights are 'real rights', they don't want the government enforcing them.

This is why libertarianism seems dogmatic to me. In this case, stopping someone from printing a particular book and selling it (which they couldn't have done if the book was never written!) trumps enriching everyone's lives by rewarding the innovator for his useful new idea and encouraging people to come up with other useful ones. How can anyone subscribe to this ideology?

[JoelKatz]

This is why libertarianism seems dogmatic to me. In this case, stopping someone from printing a particular book and selling it (which they couldn't have done if the book was never written!) trumps enriching everyone's lives by rewarding the innovator for his useful new idea and encouraging people to come up with other useful ones. How can anyone subscribe to this ideology?

First, let me repeat one more time that I disagree with Libertarianism's position on IP. But let me respond to your dogmatism argument:

Suppose there was a doctor who cured cancer. He knew the cure, but wasn't going to tell it to anyone unless he got compensation. And say he really wanted to have sex with your nine year old daughter. I hope you would consider any society that even considered trading him for the cure under those conditions to be unacceptable. Libertarians see these kinds of issues in those kinds of terms. He doesn't have a right to your daughter, period. It doesn't matter what society might gain, because your daughter is not society's to trade.

And I should add further that Libertarians genuinely believe that the long term benefits of having a society that reliably respects rights will outweigh all the small benefits of occasionally violating them. Yes, some development will be discouraged.

(I'm starting to feel I'm reaching the limit of my ability to defend a position I don't share. A real Libertarian might do a better job.)

To bring it on topic -- say we were to find something horribly wrong with BitCoin that made it much less useful but kept the value high. But say the early adopters held a patent and were too invested in the current hash chain to allow any fixes. IP could mean that we would have to wait 15 years to introduce a competing currency.

[wpride]

Thanks!

[em3rgentOrdr]

So-called "intellectual property" violates real property rights, plain and simple.

[JoelKatz]

So-called "intellectual property" violates real property rights, plain and simple.

Suppose you and I own competing seafood restaurants. Suppose you know I'm planning a very important event and shrimp is the main item on the menu. Suppose you also know that I have a legally binding contract with a shrimp supplier and would have a hard time finding shrimp for my important event if my supplier failed to deliver. Say you know the shrimp supplier has almost no assets and is basically judgment proof, and you know I would suffer damages well beyond what he could ever pay me back. And you really don't like me, and know that if I suffered financial harm, that would help your business. If you offer the shrimp supplier a large sum of money to default on his contract with me, have you violated my rights? Of course I can sue the shrimp supplier, but can I sue you?

Because your argument only works if contracts are *never* enforceable against third parties.

[myrkul]

Since I didn't see the tl;dr you were looking for, allow me to provide it:

By claiming intellectual property rights on the data in the book or CD or game I bought, you are claiming partial ownership of my property. That violates my property rights. I bought it, and I bought the whole thing, Data included.

[JoelKatz]

By claiming intellectual property rights on the data in the book or CD or game I bought, you are claiming partial ownership of my property. That violates my property rights. I bought it, and I bought the whole thing, Data included.

Suppose I offer to sell you a car for $1,500. Then I say, "I tell you what, you can have it for $1,200, but if you drive it on a Saturday between 2AM and 3AM local time, you must pay me $15." Is that enforceable?

You bought whatever your agreement with the seller says you bought. That agreement includes the laws of your jurisdiction unless you negotiate otherwise.

[myrkul]

Because your argument only works if contracts are *never* enforceable against third parties.

Exactly.

Suppose I offer to sell you a car for $1,500. Then I say, "I tell you what, you can have it for $1,200, but if you drive it on a Saturday between 2AM and 3AM local time, you must pay me $15." Is that enforceable?

If I agreed to such a ludicrous contract, I would be bound by it.

You bought whatever your agreement with the seller says you bought. That agreement includes the laws of your jurisdiction unless you negotiate otherwise.

We're not talking about laws. We're talking about rights.

[Sigma]

By claiming intellectual property rights on the data in the book or CD or game I bought, you are claiming partial ownership of my property. That violates my property rights. I bought it, and I bought the whole thing, Data included.

Suppose I offer to sell you a car for $1,500. Then I say, "I tell you what, you can have it for $1,200, but if you drive it on a Saturday between 2AM and 3AM local time, you must pay me $15." Is that enforceable?

You bought whatever your agreement with the seller says you bought. That agreement includes the laws of your jurisdiction unless you negotiate otherwise.

I think the equivalent real situation you are trying to get at is that companies can wrap agreements in their products. What is different is that these wrappers are usually not signed by the purchaser, and not made clear prior to purchase and opening of the product. This would be like sticking this contract in the glovebox of the car and then claiming you agreed without any prior notification.

Perhaps you are being real and assuming someone would take those contracts for the car. This doesn't happen because there is no need and someone would simply rather sell the product. This has usually not happened with IP related materials up until very recently. This is happening now because IP is different than a normal product like a car and the producers of it need to come up with some way of keeping control of the profit chain, even though technology has moved past that ability.

[JoelKatz]

If I agreed to such a ludicrous contract, I would be bound by it.

Exactly. In a Libertarian society, IP 'laws' would be implemented as contracts and they would be enforceable.

You bought whatever your agreement with the seller says you bought. That agreement includes the laws of your jurisdiction unless you negotiate otherwise.

We're not talking about laws. We're talking about rights.

When laws set the parameters for contracts, they define rights. For example, say I agree to mow your lawn 8 times over the next 2 months for $900. Then say I don't mow your lawn. You certainly have the right to damages. But do you have the right to compel me to mow your lawn? Unless the contract specifies otherwise, you have that right if the law says so and you don't if it doesn't. One of the things laws have to do is set the default terms -- otherwise you couldn't buy a candy bar without signing a multi-page agreement and courts would have no rational basis to decide how to address contractual disputes when terms weren't in a contract.

Unless agreed otherwise, a contract transfers those rights the laws says it does, as this is what both parties expect. When you buy a CD in this country, you understand that you are agreeing not to copy it because the law does not give you that right. If you wanted to buy that right, the other party would have charged you more.

In a purely Libertarian society, there is no question that IP could be implemented by contracts. The only real question is whether those contracts should be enforceable against third parties who knowingly interfere with them (as in my shrimp example).

And note that absent IP laws, things might never go into the public domain and you might never have fair use rights. In a pure contract IP system, the contract says whatever the author/composer/artist wants it to if they can get the buyer to agree. This is why companies like Microsoft use copyright and patent when they have to, but they much prefer contracts (EULAs) -- because they can choose the terms on those.

[em3rgentOrdr]

tl;dr summary: in a free society, two contracting parties may create contracts restricting duplication of information by each of them, however, they may not enforce such contract against non-consenting 3rd parties.

[myrkul]

You're free to ask purchasers to sign whatever contracts you like.

Don't expect to sell a lot.

[JoelKatz]

tl;dr summary: in a free society, two contracting parties may create contracts restricting duplication of information by each of them, however, they may not enforce such contract against non-consenting 3rd parties.

It's the last part that's the problem. I don't see any reason they shouldn't be able to enforce them against non-consenting third parties. If rights obtained by contracts are to be treated as real rights, then contracts will have to be enforceable against third parties.

Hypothetical: You and I own competing businesses. My employees have a clause in their employment contracts that if they quit to work for a competing business, they cannot contact prior customers for 180 days. You intentionally and knowingly hire my employees from me and pay them a bonus for each prior customer they get to switch from my company to yours. You specifically direct them to ignore the 180 day agreement. Can I sue you?

[JoelKatz]

You're free to ask purchasers to sign whatever contracts you like.

Making things like that efficient is easy. I would imagine, for example, you would probably just show some kind of ID card indicating you had already agreed to standard terms to get into a movie theater or book store. I don't know the best way to do it, but someone would figure it out.

[myrkul]

It's the last part that's the problem. I don't see any reason they shouldn't be able to enforce them against non-consenting third parties. If rights obtained by contracts are to be treated as real rights, then contracts will have to be enforceable against third parties.

Hypothetical: You and I own competing businesses. My employees have a clause in their employment contracts that if they quit to work for a competing business, they cannot contact prior customers for 180 days. You intentionally and knowingly hire my employees from me and pay them a bonus for each prior customer they get to switch from my company to yours. You specifically direct them to ignore the 180 day agreement. Can I sue you?

Rights are not obtained by contract. Agreements are.

No, but you can 'sue' them.

[em3rgentOrdr]

It's the last part that's the problem. I don't see any reason they shouldn't be able to enforce them against non-consenting third parties. If rights obtained by contracts are to be treated as real rights, then contracts will have to be enforceable against third parties.

Hypothetical: You and I own competing businesses. My employees have a clause in their employment contracts that if they quit to work for a competing business, they cannot contact prior customers for 180 days. You intentionally and knowingly hire my employees from me and pay them a bonus for each prior customer they get to switch from my company to yours. You specifically direct them to ignore the 180 day agreement. Can I sue you?

Rights are not obtained by contract. Agreements are.

No, but you can 'sue' them.

+1.  Simple.

[Insti]

Suppose I am a master chef in a small village. My food preparation method is healthier and tastier than other alternatives. There is no way to reverse-engineer my food preparation method from the food I serve. I want to write a cookbook. It will take me 500 hours to write this cookbook, in which time I could just make more food to earn me some money. My secret recipes are so good that it is clear that society as a whole will be far better off if more chefs could utilize my techniques [1] than if I spent the 500 hours cooking better meals for a small number of people. You would agree that it is better if this method was known to more people. [2]

What incentive do I have to write this cookbook?[3] If I try to publish even a single copy, any established book publisher with more efficient book-printing resources than I do will be able to prevent me from earning any money [4] while earning a hefty profit themselves. The only possible solution I can think of is the idea of selling my final draft of the cookbook to a publisher - that is, selling the right to be the first person (besides myself) to see what I have written so that they can publish it. The publisher would only offer me prices comparable to what I could make with IP protection is if they were able to read it first, in which case I would have to have some contract protecting my IP rights with this company (but again, this requires a government to enforce this contract, which means IP is something the government has to recognize).

edit: Also, assume the IP protection I'm talking about is temporary (enough for what I make to make the time investment worth it), not something that would give me permanent control (maybe like music copyright, but shorter and without the draconic punishments from infringement).

1. No it is not.
2. No I do not.
3. If "society" thinks it is important that you write a cookbook, it will provide you with whatever you need to write it. If they don't then maybe they didn't need it that badly after all.
4. Not necessarily, but also not really relevant.

There are other solutions which would allow you to share your recipes with only minimal inconvenience to yourself. Such as allowing a single observer to watch you prepare the meals and take notes on the ingredients and process.

Just because you are unable to think up a business model which makes what you want to do profitable does not mean you should be permitted to invent one that benefits you to the detriment of the rest of the society (as IP laws do.) I would claim that IP laws do more harm than good. (with regard to the creation of what is currently called IP) But we have a "tradgedy of the anti-commons"[5] where just because we don't see the things that are not created we don't count them as negatives.

Also, +1 on what the 3rd party contract people said.

[5] if anyone knows what this is acutally called, please let me know.

[em3rgentOrdr]

Just because you are unable to think up a business model which makes what you want to do profitable does not mean you should be permitted to invent one that benefits you to the detriment of the rest of the society (as IP laws do.)

+1

[toast]

Wow, lots of good explanations. Very helpful. I'm still not entirely convinced but at least I know what to read up about now.

[JoelKatz]

Rights are not obtained by contract. Agreements are.

I don't understand this distinction. What is the difference between an agreement and the right to enforce an agreement?

[agaumoney]

Suppose I am a master chef in a small village. My food preparation method is healthier and tastier than other alternatives. There is no way to reverse-engineer my food preparation method from the food I serve. I want to write a cookbook. It will take me 500 hours to write this cookbook, in which time I could just make more food to earn me some money. My secret recipes are so good that it is clear that society as a whole will be far better off if more chefs could utilize my techniques than if I spent the 500 hours cooking better meals for a small number of people. You would agree that it is better if this method was known to more people.

What incentive do I have to write this cookbook?

The only reason you approach the problem that way is because you are conditioned to think that you own ideas.  In the real world you never own ideas, because often many people have the same idea, and once an idea is exposed then everybody has the same idea.

Thus the problem does not exist today or in fictional hard-core L. world.  Or in other words, very little incentive.  The only being, "it is clear that society as a whole will be far better off if more chefs could utilize my techniques."  First off, why should society believe you?  It's called hubris, and many people have it.  It isn't a problem for society, as long as those people have no power...  So why should society give them power?

Your problem is that you really do have good ideas that will help society.  And the question is, what do you do to get your ideas out where everybody can have those same ideas?

Instead of spending 500 freaking hours (12.5 weeks at 40hrs per) to write a cookbook...

  Get free kitchen help with interns who want to learn from you.

  See the world (travel) and teach in exchange for room and board.

  Start a school for people to pay and come learn from you.

  Publish a recipe or two every now and then (like in a newspaper column or even just on your establishment's door "this is what I cooked yesterday.").

Or if you really don't care about society, just keep on moping about how if only the world were fair you could control how people use their ideas.


OK, transition to less hardcore happens here...


If society says ideas could be owned, would you charge a royalty for each time someone follows a recipe in your book?  Would you sue for damages if they followed it wrong or made some changes to it?  I hope the answer to both is, "of course not, that would be silly."

The ideas in the cookbook can never be owned, but the book itself -- layout, text, pictures, etc. can be owned similar to the compilation copyright today.  If someone were to republish a book identical or with the exact same set or even substantially the same set of recipes as yours, it would be a violation.

But if someone took just your venison recipes and other venison recipes from many other places and put them into a new "How to Cook Venison" book, such that yours make up no more than a fraction of the whole and only a fraction of yours were used, no violation.  (As they didn't just lift your pages intact!)

This is how cookbooks are treated, generally, today.  And even when not food, say, programming algorithms instead, it is how recipe books are treated.  And then you have some crass lawyers who come in after the fact and patent or otherwise claim ownership over said algorithms, and cause no end of grief for some deep pockets who happened to use them.  Even if neither the lawyers nor the deep pockets ever saw the book, or the patent, or anything else.

(BTW, I "invented" the bubble-sort as a kid in the late 1970's.  I had no idea that it had been invented long before or that it was called a bubble-sort or that it was a poor algorithm or anything like that.  It was just an obvious way to sort my list.  Similar "inventions" (also known as "ideas") happen every day, and when you are in the middle of it, it is obvious that the concept of IP ownership as practiced today is fundamentally flawed.)

[agaumoney]

Rights are not obtained by contract. Agreements are.

I don't understand this distinction. What is the difference between an agreement and the right to enforce an agreement?

Agreements are created (made).

You cannot create rights.

[JoelKatz]

Rights are not obtained by contract. Agreements are.

I don't understand this distinction. What is the difference between an agreement and the right to enforce an agreement?

Agreements are created (made).

You cannot create rights.

Sorry, I still can't understand what you're trying to say. Say my wife and I have a daughter. She now has certain rights. Didn't my wife and I, by creating our daughter, also create those rights?

Rights arise as a consequence of particular states of affairs. By creating those states of affairs, we create the rights that arise from them as a consequence.

And agreements do create rights. If you buy a car from me, you now have the right to that car, a right you didn't previously have. The agreement created the right. I suppose you can argue that you always had the right to all possessions you justly acquired and that the right to the car is merely a consequence of a pre-existing right, but that weaker version of the difference between rights and agreements is too weak to make your point. (For example, you can certainly enforce that agreement against a third party who destroys the car that is only yours because of the agreement.)

Every valid agreement creates a new right on the part of all the parties of that agreement -- the right to enforce the agreement.

[rezin777]

Rights are not obtained by contract. Agreements are.

I don't understand this distinction. What is the difference between an agreement and the right to enforce an agreement?

Agreements are created (made).

You cannot create rights.

Really? So who gave us our rights and where did they come from?

We give rights to ourselves by agreeing to abide by them.

I want the right to live. As long as I do not take another's life, I have that right. If I take someone's life, I've given up my right to life because I've proven that I will not respect another's right to life.

I want the right to own property. As long as I do not take another's property, I have that right. If I steal something, I've given up my right to own property because I've proven that I will not respect another's right to own property.

If someone refuses to respect the rights of another, they can not expect to have rights of their own.

Once someone legitimizes violence as a tool to be used against others, they legitimize violence as a tool to be used against themselves.

We can interact with each other through mutual voluntary agreement, or we can use force. The initiator sets the premise for future interaction.

[em3rgentOrdr]

Rights are not obtained by contract. Agreements are.

I don't understand this distinction. What is the difference between an agreement and the right to enforce an agreement?

Agreements are created (made).

You cannot create rights.

Really? So who gave us our rights and where did they come from?

We give rights to ourselves by agreeing to abide by them.

I tend to avoid the whole concepts of "rights" all together.  There are only humans, and there are agreements between humans.  Simple.

[myrkul]

Sorry, I still can't understand what you're trying to say. Say my wife and I have a daughter. She now has certain rights. Didn't my wife and I, by creating our daughter, also create those rights?

Rights arise as a consequence of particular states of affairs. By creating those states of affairs, we create the rights that arise from them as a consequence.

And agreements do create rights. If you buy a car from me, you now have the right to that car, a right you didn't previously have. The agreement created the right. I suppose you can argue that you always had the right to all possessions you justly acquired and that the right to the car is merely a consequence of a pre-existing right, but that weaker version of the difference between rights and agreements is too weak to make your point. (For example, you can certainly enforce that agreement against a third party who destroys the car that is only yours because of the agreement.)

Every valid agreement creates a new right on the part of all the parties of that agreement -- the right to enforce the agreement.

You've created a new human being, which by virtue of being a human being, has certain rights. We're already straying rather far afield from the basic information that the OP wanted, but since that's been covered, I'm OK with that. I'm in favor of the concept of Negative rights, in which the Right to life, for instance, is defined as: the right NOT to be killed. The right to property is the right NOT to be stolen from.

If You and I make an agreement to transfer ownership of a vehicle, the vehicle becomes my property, and is no longer yours. You haven't lost any rights, nor have I gained them. If you, or a third party then tries to drive off with my car, then you or they are violating my right NOT to be stolen from, and most certainly I can enforce that.

[Mr2001]

I'm not a hardcore libertarian, but I am a fervent opponent of IP law. Others have already covered the philosophical argument that IP infringes on property rights; personally, with regard to copyright, I'm more disturbed by the infringement on free speech. But let me focus on the OP's practical argument for now.

Suppose I am a master chef in a small village. My food preparation method is healthier and tastier than other alternatives. There is no way to reverse-engineer my food preparation method from the food I serve. I want to write a cookbook. It will take me 500 hours to write this cookbook, in which time I could just make more food to earn me some money. My secret recipes are so good that it is clear that society as a whole will be far better off if more chefs could utilize my techniques than if I spent the 500 hours cooking better meals for a small number of people. You would agree that it is better if this method was known to more people.

What incentive do I have to write this cookbook? If I try to publish even a single copy, any established book publisher with more efficient book-printing resources than I do will be able to prevent me from earning any money while earning a hefty profit themselves. The only possible solution I can think of is the idea of selling my final draft of the cookbook to a publisher - that is, selling the right to be the first person (besides myself) to see what I have written so that they can publish it.

You've overlooked a very simple solution.

As you stated, writing the cookbook would provide a clear benefit to society. Gourmands would benefit from having healthy, tasty meals available more readily. Chefs would benefit from being able to cook better meals that customers would pay more for. Farmers, foodservice suppliers, and everyone else who profits from the restaurant industry would benefit from the growth of that industry.

So, here's the realization you're missing: those benefits make the act of writing the cookbook valuable in itself. Everyone who would benefit from the existence of that cookbook has an economic incentive to pay you to write it. That payment is a investment in their future profits (or their enjoyment of tasty meals).

If you're only able to think of the cookbook as a product -- something you have to invest your time into making, then recoup that investment later by selling copies -- then you won't be able to see past the copyright-based business model. But if you can let go of the concept of cookbook-as-product, and focus on the labor that goes into writing it, the solution will be obvious.

People will tangibly benefit from reading your cookbook. They can't read it until you write it. It won't be written until you willingly provide your labor. You can withhold that labor until someone (or a group of people pooling their money) agrees to pay you a price you consider fair. Therefore, you can be pretty damn sure that people will pay you to write it: at most, you'll just need to find a middleman to collect payments and hold them in escrow, not too different from what's already done on political campaign sites, Kickstarter, Sellaband, etc.

And once that's done and you publish the book, you can stop worrying about who copies it, since you've finished the job and been paid for it.

[myrkul]

And once that's done and you publish the book, you can stop worrying about who copies it, since you've finished the job and been paid for it.

+1.

[JoelKatz]

If You and I make an agreement to transfer ownership of a vehicle, the vehicle becomes my property, and is no longer yours. You haven't lost any rights, nor have I gained them. If you, or a third party then tries to drive off with my car, then you or they are violating my right NOT to be stolen from, and most certainly I can enforce that.

Why aren't they violating my right not to be stolen from? Why does your right not to be stolen from extend to cover the car? And the answer is that the right extends to cover the car because of the contract.

Call it extensions, call it whatever you want. But the fact is, contracts create rights, or extend them, or make actions violations of rights that wouldn't otherwise be. Whatever. The terminology is not important. The point is, rights obtains contractually are real rights and in fact most rights are obtained in this way. If your boss doesn't pay you for your labor, he's violating your rights because he agreed to pay you.

When you buy a CD in the United States, you are entering into an implicit contract with the seller of the CD. This contract incorporates the laws of the United States to set the defaults. You are, of course, free to negotiate other terms, but the law will have to set the default in every society. Otherwise, there is no way courts could enforce contracts.

[myrkul]

When you buy a CD in the United States, you are entering into an implicit contract with the seller of the CD. This contract incorporates the laws of the United States to set the defaults. You are, of course, free to negotiate other terms, but the law will have to set the default in every society. Otherwise, there is no way courts could enforce contracts.

Implicit contracts are not valid. this is the core of libertarian philosophy, and why, if they're self-honest, libertarians are against IP.

[Mr2001]

When you buy a CD in the United States, you are entering into an implicit contract with the seller of the CD. This contract incorporates the laws of the United States to set the defaults. You are, of course, free to negotiate other terms, but the law will have to set the default in every society. Otherwise, there is no way courts could enforce contracts.

Laws are not the same as contractual terms. When I buy something at the store, the only terms I'm agreeing to are the exchange of ownership (implied by tradition as part of the act of sale) and whatever terms are explicitly laid out at the point of sale (return policy, etc.). When I buy a CD, I'm trading my money for the store's plastic disc, but I'm not agreeing to any restrictions on what I do with that disc once I get it home.

Those restrictions are part of the law, not the sales contract. If I violate them, it won't be the seller (the store) who comes after me, it'll be a third party (the copyright holder, or law enforcement) who had no part in the sale and is not acting on behalf of the seller; and I won't have violated any agreement, I will only have violated the wishes of third parties I've never met and politicians who don't represent my interests.

[billyjoeallen]

How are you going to enforce your ownership of IP without tax-funded government? If taxes are theft (they are), then you are violating others property rights to enforce your own.

You don't have the right to the fruits of my labor to enforce your ownership claims, no matter how valid those claims may be.

[JoelKatz]

Implicit contracts are not valid. this is the core of libertarian philosophy, and why, if they're self-honest, libertarians are against IP.

So if I walk into a candy store, put a candy bar and a dollar on the counter, what happens? Can the candy store owner just take my dollar and not give me the candy bar? How do I know the candy bar is mine after I've paid?

I have met dozens of Libertarians and I've never met a single one who believed that implied contracts were invalid where the terms were not unconscionable, known to both parties, and one party gave the consideration to the other that was understood by both to signify acceptance of the contract.

[JoelKatz]

Laws are not the same as contractual terms. When I buy something at the store, the only terms I'm agreeing to are the exchange of ownership (implied by tradition as part of the act of sale) and whatever terms are explicitly laid out at the point of sale (return policy, etc.). When I buy a CD, I'm trading my money for the store's plastic disc, but I'm not agreeing to any restrictions on what I do with that disc once I get it home.

That's just because we're not a Libertarian society. But in a Libertarian society, that's exactly how IP would work. It would be in the form of contracts, either explicit or implied.

In a Libertarian society, assuming courts are operated by the government, the government will have to set default contractual terms because otherwise it could not enforce contracts. Whatever those defaults are, people are always free to change them. Likely, if the default included no IP or IP that most sellers didn't find satisfactory, restrictions on what you could do with the CD once you got home would be included in the sale contract.

Those restrictions are part of the law, not the sales contract. If I violate them, it won't be the seller (the store) who comes after me, it'll be a third party (the copyright holder, or law enforcement) who had no part in the sale and is not acting on behalf of the seller; and I won't have violated any agreement, I will only have violated the wishes of third parties I've never met and politicians who don't represent my interests.

Right, because we don't have Libertarian IP in this country. If we did, you would likely have to enter into a contract with the rights holder to buy a CD. This could easily be made efficient and streamlined and there would be a large incentive to do so. As I said, you'd probably have to show some kind of ID card that indicated you had entered into a contract with the distributor of the movie in order to enter a movie theater. It wouldn't be hard to make this efficient.

Note that the terms could be much worse than the ones in the United States. With IP terms set by law, the terms are a balance between creators and consumers and include things like fair use. With IP terms set by contract, the terms are much more in the control of the creators and likely would include much more restricted fair use rights. This is why Microsoft uses EULAs.

[myrkul]

Implicit contracts are not valid. this is the core of libertarian philosophy, and why, if they're self-honest, libertarians are against IP.

So if I walk into a candy store, put a candy bar and a dollar on the counter, what happens? Can the candy store owner just take my dollar and not give me the candy bar? How do I know the candy bar is mine after I've paid?

I have met dozens of Libertarians and I've never met a single one who believed that implied contracts were invalid where the terms were not unconscionable, known to both parties, and one party gave the consideration to the other that was understood by both to signify acceptance of the contract.

I never said verbal agreements were not valid. Or even the short-hand agreements that take the form of pricetag. You see the price tag and you know, that if you give the clerk that specified amount of money, you can leave the store with the item. That is an explicit, if abbreviated, agreement between you and the store.

[JoelKatz]

I never said verbal agreements were not valid. Or even the short-hand agreements that take the form of pricetag. You see the price tag and you know, that if you give the clerk that specified amount of money, you can leave the store with the item. That is an explicit, if abbreviated, agreement between you and the store.

There is one and only one difference between an implied contract and an explicit contract. With an explicit contract, the terms are explicitly agreed to. With an implicit contract, the contract is offered by one side and the agreement is implied from the other side's performance of what the implicit contract requires.

For example: "How much is a candy bar?" "$1" "Okay" - explicit
"How much is a candy bar?" "$1" [hands $1 across the counter] - implicit

That really is the only difference. In both cases, some of the terms of the contract are implied by law and understood by both sides. (For example, what happens if my dollar is counterfeit? What happens if the candy bar is defective in some way? All of these terms are implicitly part of even an explicit contract.)

There really is almost no difference. Most real-world agreements have both explicit and implicit terms. The only real difference is that it's sometimes harder to prove that an implicit contract exists or to establish that it had particular terms. But so long as there was a mutual understanding, whether explicit or implicit, the terms should be enforceable. (With the obvious exceptions for things like verbal agreements to transfer ownership in land, unconscionable terms, agreements obtained by coercion, and so on.)

[myrkul]

(With the obvious exceptions for things like verbal agreements to transfer ownership in land, unconscionable terms, agreements obtained by coercion, and so on.)

...and we're back to 'you don't own what's in my brain'

[Mr2001]

Right, because we don't have Libertarian IP in this country. If we did, you would likely have to enter into a contract with the rights holder to buy a CD. This could easily be made efficient and streamlined and there would be a large incentive to do so. As I said, you'd probably have to show some kind of ID card that indicated you had entered into a contract with the distributor of the movie in order to enter a movie theater. It wouldn't be hard to make this efficient.

That would be fantastic. I don't think people in general would stand for all these restrictions on their speech and property rights if they had to explicitly agree to them each time they bought something.

For instance, buying decongestants at the drug store is such a hassle (thanks to anti-meth laws) that I find myself discouraged from doing it, even though all I have to do is go to the counter, sign a form, and show my ID. I could foresee a lot of customers choosing not to buy CDs and movie tickets if buying them meant voluntarily agreeing to pay thousands of dollars in fines and/or serve jail time if they used their knowledge of that music/film in the wrong way thereafter.

Note that the terms could be much worse than the ones in the United States. With IP terms set by law, the terms are a balance between creators and consumers and include things like fair use. With IP terms set by contract, the terms are much more in the control of the creators and likely would include much more restricted fair use rights. This is why Microsoft uses EULAs.

Considering the difference in political clout between creators and consumers, I don't think there'd be much difference. There's basically no one looking out for the interests of consumers or defending fair use anymore. The "limited time" of a copyright term has gotten longer and longer, and been extended retroactively with no reason not to expect future extensions, such that it may as well be unlimited. The perceived purpose of copyright has shifted in many eyes, from giving authors an economic incentive for future work, to instead giving them their morally deserved rewards for past work. Fair use as we know it today is good for critics and parodists but has almost no value to consumers.

[JoelKatz]

(With the obvious exceptions for things like verbal agreements to transfer ownership in land, unconscionable terms, agreements obtained by coercion, and so on.)

...and we're back to 'you don't own what's in my brain'

Are you arguing that copyright and patent terms are not just unfair or unreasonable but *unconscionable*? Are you saying I should not be permitted to sell you a CD on the condition that you do not copy it?

It is a fundamental Libertarian notion that the government should never prevent two consenting people from making a mutually-beneficial agreement without an extremely powerful justification for doing so. I don't see an extremely powerful justification for prohibiting agreements of this kind.

[JoelKatz]

That would be fantastic. I don't think people in general would stand for all these restrictions on their speech and property rights if they had to explicitly agree to them each time they bought something.

It depends how different you imagine society being. If all we did was get rid of the IP laws but otherwise left things the same, people would agree to them without even reading them much like they do today with click-through EULAs.

For instance, buying decongestants at the drug store is such a hassle (thanks to anti-meth laws) that I find myself discouraged from doing it, even though all I have to do is go to the counter, sign a form, and show my ID. I could foresee a lot of customers choosing not to buy CDs and movie tickets if buying them meant voluntarily agreeing to pay thousands of dollars in fines and/or serve jail time if they used their knowledge of that music/film in the wrong way thereafter.

It's only such a hassle because the government requires it to be a hassle. If there were huge commercial incentives to make it as easy as possible and no laws requiring it to be difficult, it could be made trivially easy to do. (Like having a library card. If you had to do it to go to a movie, you would.)

Note that the terms could be much worse than the ones in the United States. With IP terms set by law, the terms are a balance between creators and consumers and include things like fair use. With IP terms set by contract, the terms are much more in the control of the creators and likely would include much more restricted fair use rights. This is why Microsoft uses EULAs.

Considering the difference in political clout between creators and consumers, I don't think there'd be much difference. There's basically no one looking out for the interests of consumers or defending fair use anymore. The "limited time" of a copyright term has gotten longer and longer, and been extended retroactively with no reason not to expect future extensions, such that it may as well be unlimited. The perceived purpose of copyright has shifted in many eyes, from giving authors an economic incentive for future work, to instead giving them their morally deserved rewards for past work. Fair use as we know it today is good for critics and parodists but has almost no value to consumers.

I largely agree with everything you say about how IP laws actually operate. Libertarians should be reasonably convinced that market-based IP agreements arranged by contracts will work out better.

Really the only live issue, other than Libertarians who don't understand the consequences of their own positions, is enforceability against third parties. As I've argued, Libertarianism doesn't work if third parties are free to ignore the consequences of other people's contracts. (The only reason I can't steal your TV from you is because I am not free to ignore the right to that TV that you acquired from that contract. If I was free to ignore that contract on the grounds that I wasn't a party to it, you would have no recourse against me when I stole your TV. I would not be required to accept that it was yours.)

[Mr2001]

Are you arguing that copyright and patent terms are not just unfair or unreasonable but *unconscionable*? Are you saying I should not be permitted to sell you a CD on the condition that you do not copy it?

It is a fundamental Libertarian notion that the government should never prevent two consenting people from making a mutually-beneficial agreement without an extremely powerful justification for doing so. I don't see an extremely powerful justification for prohibiting agreements of this kind.

I agree that it's hard to justify that prohibition from a libertarian standpoint, but as a non-hardcore-libertarian I see no problem doing so. I don't mind saying that you can't sell yourself into slavery, for example. And although I've got no beef with NDAs that protect actual secrets, I wouldn't mind banning contracts that require one party to avoid sharing information that's already been made available to the public, which is what a contract that implemented copyright would be doing. To sign away the right to discuss your own culture is to give up your own humanity, and I'd be delighted to see my tax dollars going to fight those who would pressure their customers into doing such a thing.

[Mr2001]

As I've argued, Libertarianism doesn't work if third parties are free to ignore the consequences of other people's contracts. (The only reason I can't steal your TV from you is because I am not free to ignore the right to that TV that you acquired from that contract. If I was free to ignore that contract on the grounds that I wasn't a party to it, you would have no recourse against me when I stole your TV. I would not be required to accept that it was yours.)

That's only true if you refuse to separate the concept of ownership from the contract that assigns it. As I see it, it's none of my concern how you came to own that TV -- what matters is that you own it now. The TV is not a bitcoin that needs to prove its lineage to everyone who comes across it, and the sales contract is not a passport that you need to carry around to prove you own the TV. A third party can't ignore the contract and pretend you don't own the TV any more than he can ignore a contract with your barber and pretend your hair hasn't been cut.

[myrkul]

Are you arguing that copyright and patent terms are not just unfair or unreasonable but *unconscionable*? Are you saying I should not be permitted to sell you a CD on the condition that you do not copy it?

It is a fundamental Libertarian notion that the government should never prevent two consenting people from making a mutually-beneficial agreement without an extremely powerful justification for doing so. I don't see an extremely powerful justification for prohibiting agreements of this kind.

The unconscionable nature of Intellectual Property is the basis of my argument against it. I also despise abortion, but I support a woman's right to have one.

The unenforceability of a contract upon a third person is the basis of my argument against IP law. (well, that and my problem with laws in general)

[dannickherpderp]

I like to look at the intellectual property argument from something of a utilitarian standpoint.  Imagine there is a machine I build and it does a wonderful thing, say it cures cancer, or makes cake.  If my machine is truly an improvement over other options on the market I will be able to charge a large profit for it, and eventually copycats will come out and the price will be forced down.  if we are at a point where everyone can rip off everyone else for these sorts of machines if they weren't patented then I would argue the envelope is not being pushed hard enough.  I can't patent making ice or yarn or beer now because everyone can do it.  If your cooking methods are really that revolutionary, then no you have no reason to publish them but you would be foolish in thinking that they would never be reproduced in any real society.  The innovation-knockoff cycle continues in a given industry until human intellect is strained.  "Let's see them try to make THIS!" would be the shouts from remarkably high-paid engineers and scientists as they compete for capital.

Think about it.  What would happen if Lycos had somehow claimed intellectual property on all search engines?

[myrkul]

Think about it.  What would happen if Lycos had somehow claimed intellectual property on all search engines?

I shudder to think.

And yes, the knockoff cycle, as I think I will start calling it now, is a vital component of a healthy economy. It encourages innovation.

[JoelKatz]

That's only true if you refuse to separate the concept of ownership from the contract that assigns it. As I see it, it's none of my concern how you came to own that TV -- what matters is that you own it now. The TV is not a bitcoin that needs to prove its lineage to everyone who comes across it, and the sales contract is not a passport that you need to carry around to prove you own the TV. A third party can't ignore the contract and pretend you don't own the TV any more than he can ignore a contract with your barber and pretend your hair hasn't been cut.

I refuse to separate them because you can't separate them. It seems like you can when you look only at simple sale contracts. If I sell you the TV, you now own the TV. It doesn't matter what the contract says. But we're not talking about simple sale contracts, we're talking about more complex cases. Say you buy a TV, but in the sale contract you agreed not to watch the TV on Wednesdays. Now suppose I accidentally destroy that TV. Are you entitled to the fair market value of the TV? No, because the fair market value includes the value of the right to watch the TV on Wednesdays, a right you didn't have.

[Mr2001]

Say you buy a TV, but in the sale contract you agreed not to watch the TV on Wednesdays. Now suppose I accidentally destroy that TV. Are you entitled to the fair market value of the TV? No, because the fair market value includes the value of the right to watch the TV on Wednesdays, a right you didn't have.

I don't see how that's relevant. The question of what damages I suffer when you destroy my TV is separate from the question of whether or not I own it; the fair value of the property you destroyed depends on many other things besides the terms under which I bought it.

And in practice, I suspect a court would find that my contract with the person who sold it to me has no bearing on the amount you owe: my inability to fully enjoy the use of that property doesn't let you off the hook. For instance, if I'm blind and unable to see the screen, that doesn't mean you can pay me just enough to buy a damaged TV with a broken screen. The screen still has a value (I can resell a functional TV for more than a damaged one), just as the ability of the TV to operate on Wednesdays still has a value (I can negotiate with the seller for permission without buying a whole new TV, or I can just break my contract and watch it anyway).

The idea that you only own something if every third party agrees to abide by the contract under which you bought it is appropriate enough for a bitcoin forum, I guess, but I have to say this is the first I've ever heard of someone trying to apply it in the real world. Did you come up with it yourself, or is there a school of thought out there that believes libertarianism actually does require enforcing contracts on people who weren't parties to them?

[JoelKatz]

The idea that you only own something if every third party agrees to abide by the contract under which you bought it is appropriate enough for a bitcoin forum, I guess, but I have to say this is the first I've ever heard of someone trying to apply it in the real world. Did you come up with it yourself, or is there a school of thought out there that believes libertarianism actually does require enforcing contracts on people who weren't parties to them?

You cannot have transferrable property rights if contracts aren't enforceable against third parties. Libertarians are split about more complex cases. Ask this hypothetical to a dozen Libertarians, you will get a wide spectrum of answers:

"Fred and Jeff own competing sales businesses. Fred has a contract with all of his employees that if they leave him to work for a competitor, they may not contact existing customers for 180 days. This contract is valid and enforceable against those employees. Fully aware of this, Jeff hires away Fred's employees and directs them to contact their existing customers and try to get them to switch to his company. When the employees express fear that they might be sued or that they shouldn't break their word, he tells them not to worry about it. Fred hears about this from his customers. Does he have a suit against Jeff?"

[myrkul]

[1]You cannot have transferrable property rights if contracts aren't enforceable against third parties. Libertarians are split about more complex cases. Ask this hypothetical to a dozen Libertarians, you will get a wide spectrum of answers:

[2]"Fred and Jeff own competing sales businesses. Fred has a contract with all of his employees that if they leave him to work for a competitor, they may not contact existing customers for 180 days. This contract is valid and enforceable against those employees. Fully aware of this, Jeff hires away Fred's employees and directs them to contact their existing customers and try to get them to switch to his company. When the employees express fear that they might be sued or that they shouldn't break their word, he tells them not to worry about it. Fred hears about this from his customers. Does he have a suit against Jeff?"

[1]LOLWUT?

[2]As I said before, being a dick isn't actionable. Breaking a contract is.

[JoelKatz]

[1]You cannot have transferrable property rights if contracts aren't enforceable against third parties. Libertarians are split about more complex cases. Ask this hypothetical to a dozen Libertarians, you will get a wide spectrum of answers:

[2]"Fred and Jeff own competing sales businesses. Fred has a contract with all of his employees that if they leave him to work for a competitor, they may not contact existing customers for 180 days. This contract is valid and enforceable against those employees. Fully aware of this, Jeff hires away Fred's employees and directs them to contact their existing customers and try to get them to switch to his company. When the employees express fear that they might be sued or that they shouldn't break their word, he tells them not to worry about it. Fred hears about this from his customers. Does he have a suit against Jeff?"

[1]LOLWUT?

Which word didn't you understand?

[2]As I said before, being a dick isn't actionable. Breaking a contract is.

I understand that's your position, but Libertarians are in fact split on the issue of whether Jeff broke a contract or was merely being a dick. I just asked a bona fide Libertarian, and his position was that Fred has a suit against Jeff because his implied contract with his employees (that he would pay them money for breaking their contract with Fred) makes him an indirect party to the contract he asked them to violate. In a sense, they are acting as Fred's agent when they violate their contract with me. This makes Fred liable.

I don't know what my own position is. I find these kinds of situations to be very difficult.

[Mr2001]

You cannot have transferrable property rights if contracts aren't enforceable against third parties.

I think you're begging the question. Maybe you can't have transferable property rights without enforcing contracts against third parties, because you have a particular belief about the nature of ownership (i.e. that it only exists to the extent that observers are contractually forced to acknowledge it), but that doesn't restrict the rest of us who aren't burdened with that belief.

[JoelKatz]

You cannot have transferrable property rights if contracts aren't enforceable against third parties.

I think you're begging the question. Maybe you can't have transferable property rights without enforcing contracts against third parties, because you have a particular belief about the nature of ownership (i.e. that it only exists to the extent that observers are contractually forced to acknowledge it), but that doesn't restrict the rest of us who aren't burdened with that belief.

Okay, fair enough. But whatever that other mechanism is that permits transferrable property rights, unless it's carefully rigged not to, it will apply to other types of rights as well. In any event, Libertarians really are split on this issue. There is no one "Libertarian view" on this.

[myrkul]

You cannot have transferrable property rights if contracts aren't enforceable against third parties.

I think you're begging the question. Maybe you can't have transferable property rights without enforcing contracts against third parties, because you have a particular belief about the nature of ownership (i.e. that it only exists to the extent that observers are contractually forced to acknowledge it), but that doesn't restrict the rest of us who aren't burdened with that belief.

Okay, fair enough. But whatever that other mechanism is that permits transferrable property rights, unless it's carefully rigged not to, it will apply to other types of rights as well. In any event, Libertarians really are split on this issue. There is no one "Libertarian view" on this.

Oh please, there's hardly a "libertarian view" on the definition of the color blue. I wouldn't be surprised to hear one of us say 'The market will sort it out'. And you know what? That's the answer to your little Hypothetical. The Market will sort it out.

[JoelKatz]

You cannot have transferrable property rights if contracts aren't enforceable against third parties.

I think you're begging the question. Maybe you can't have transferable property rights without enforcing contracts against third parties, because you have a particular belief about the nature of ownership (i.e. that it only exists to the extent that observers are contractually forced to acknowledge it), but that doesn't restrict the rest of us who aren't burdened with that belief.

Okay, fair enough. But whatever that other mechanism is that permits transferrable property rights, unless it's carefully rigged not to, it will apply to other types of rights as well. In any event, Libertarians really are split on this issue. There is no one "Libertarian view" on this.

Oh please, there's hardly a "libertarian view" on the definition of the color blue.

I don't think that's fair. While you can probably find a self-described Libertarian or two who holds any imaginable view, there are a large number of positions that the vast majority of Libertarians hold consistently and are consequences of Libertarianism's principles.

But if you take the position that no two Libertarians agree on anything, then there's really no answer to the OP's question.

I wouldn't be surprised to hear one of us say 'The market will sort it out'. And you know what? That's the answer to your little Hypothetical. The Market will sort it out.

I agree, most Libertarians would believe that the market would sort it out. However, their position on what role the legal system would play in that sorting will vary. But it's true, many 'defects' in the legal system can be worked around by contract. (For example, EULAs are one way Microsoft 'works around' perceived weaknesses in the law of copyright.)

[myrkul]

I wouldn't be surprised to hear one of us say 'The market will sort it out'. And you know what? That's the answer to your little Hypothetical. The Market will sort it out.

I agree, most Libertarians would believe that the market would sort it out. However, their position on what role the legal system would play in that sorting will vary. But it's true, many 'defects' in the legal system can be worked around by contract. (For example, EULAs are one way Microsoft 'works around' perceived weaknesses in the law of copyright.)

The 'blue' crack was hyperbole. But, all too often, an accurate one. The defining characteristic of a Libertarian is our love for debate (as evinced by the length of this thread)

EULAs are not contracts, and they're not enforceable.

[em3rgentOrdr]

The 'blue' crack was hyperbole. But, all too often, an accurate one. The defining characteristic of a Libertarian is our love for debate (as evinced by the length of this thread)

Well the whole premise of voluntaryism/market-anarchism/libertarianism is that disputes should be handled through reason (through contracts & agreements) first, not guns (from legislative fiat).  That's why we like to debate. 

EULAs are not contracts, and they're not enforceable.

EULAs are totally invalid contracts.  There is no "meeting of the minds" whereby two parties come to a mutually-understood agreement.  There is almost zero effort by these big corporations to communicate in plain English what exactly all that legalize BS is saying.  And then they hide some little innocent looking phrase cleverly hidden in the 20 pages of dense text that gives them carte-blance to do whatever they want.  Each party must understand what he/she is agreeing to inorder for there to be a valid contract.  At the minimum, there would need to be some multiple-choice quiz after the end of reading the damn EULA to ensure that I, the user, actually understand what I am agreeing to.  The other glaringly obvious flaw with EULAs is the fact that I don't actually have to sign it until after I have purchased it from the store clerk!   

[myrkul]

EULAs are totally invalid contracts.  There is no "meeting of the minds" whereby two parties come to a mutually-understood agreement.  There is almost zero effort by these big corporations to communicate in plain English what exactly all that legalize BS is saying.  And then they hide some little innocent looking phrase cleverly hidden in the 20 pages of dense text that gives them carte-blance to do whatever they want.  Each party must understand what he/she is agreeing to inorder for there to be a valid contract.  At the minimum, there would need to be some multiple-choice quiz after the end of reading the damn EULA to ensure that I, the user, actually understand what I am agreeing to.  The other glaringly obvious flaw with EULAs is the fact that I don't actually have to sign it until after I have purchased it from the store clerk!   

Which is why I called them 'not contracts'. They're an attempt to end-run around copyright laws and screw customers. Especially with that 'sign after you buy' thing.

That said, I haven't had to see EULA in a long time. FLOSS is your friend!

[em3rgentOrdr]

EULAs are totally invalid contracts.  There is no "meeting of the minds" whereby two parties come to a mutually-understood agreement.  There is almost zero effort by these big corporations to communicate in plain English what exactly all that legalize BS is saying.  And then they hide some little innocent looking phrase cleverly hidden in the 20 pages of dense text that gives them carte-blance to do whatever they want.  Each party must understand what he/she is agreeing to inorder for there to be a valid contract.  At the minimum, there would need to be some multiple-choice quiz after the end of reading the damn EULA to ensure that I, the user, actually understand what I am agreeing to.  The other glaringly obvious flaw with EULAs is the fact that I don't actually have to sign it until after I have purchased it from the store clerk!   

Which is why I called them 'not contracts'. They're an attempt to end-run around copyright laws and screw customers. Especially with that 'sign after you buy' thing.

That said, I haven't had to see EULA in a long time. FLOSS is your friend!

Myrkul, I was agreeing with you, just elaborating.  Just like my previous miscommunication with you when I commented about the bitcoin symbol.  Anyway, I'm in the same boat as you...I switched exclusively to Linux and almost exclusively to Free/Libre-Open-Source-Software about a year ago and have never looked back.  Only every once in a while when I use some proprietary software like dropbox or whatever that I have to click "agree".

[muc]

So-called "intellectual property" violates real property rights, plain and simple.

Agreed for the most part. I know of someone who refuses to copyright his online material because he believes that you shouldn't have contracts and/or agreements with the government, which is what he claims a copyright is. However, he claims ownership of his material, and requests people not steal it by duplicating it.

[smoothie]

Good post!

[em3rgentOrdr]

So-called "intellectual property" violates real property rights, plain and simple.

Agreed for the most part. I know of someone who refuses to copyright his online material because he believes that you shouldn't have contracts and/or agreements with the government, which is what he claims a copyright is. However, he claims ownership of his material, and requests people not steal it by duplicating it.

Does your musician friend *strongly request* that people don't copy the music he creates, or does he *threaten violence* or some sort of legal (including non-government court) action should you copy?

[bitcon]

property is theft. 

[em3rgentOrdr]

property is theft. 

Dammit!!!  I'm debating in the Noobie forum!  Nooooo!!!   

[agaumoney]

This universe doesn't grant any rights to anyone. Rights are invented by humans for political control.

Evidently you have a misunderstanding of what are rights vs. civil liberties.

Rights were identified by humans, not created.

The discussion and concept of rights are co-opted by those seeking unjust power and authority, and the terminology twisted and confused as a means for obtaining that power.  If people cannot identity what are rights, and what are confusingly called civil rights instead of civil liberties, the people will be mentally and eventually physically subject to those who can obtain power thru that confusion.

"[All men] are endowed by their Creator with certain inalienable Rights..."  works just as well if you believe in a supreme intelligent creator or whether you believe in evolution thru random chance and survival of the fittest.

"That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed."

And FYI, "secure" is not "create" or "grant" or "obtain".  "Secure" in that context means to protect from violation that which one already has.  And "just powers" come only from "the consent of the governed."

And in conclusion...

"That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government...  But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government."

[agaumoney]

But whatever that other mechanism is that permits transferrable property rights, unless it's carefully rigged not to, it will apply to other types of rights as well.

Oh please.

The "property right" is what is enforced, not the transfer of the right.

The contract or agreement effects the transfer and has no bearing on third parties.

The property right being transferred is an entirely separate matter for enforcement.

[agaumoney]

You cannot have transferrable property rights if contracts aren't enforceable against third parties.

In what world is a contract enforced against a non-participant?

Show me an actual case where a contract (NOT some other actionable matter) was enforced against a someone who was not a party to the contract either as a direct signatory or an agent or participant in a direct signatory.

In your contrived Jeff example, most of the time Jeff is not part of the contract violation lawsuit.  However, as you describe it, Jeff was inducing people to violate the law, which is itself illegal and could be sued on that basis.  Not for violating the contract, because Jeff didn't if he wasn't a party to it!  This is a similar principle to that which finds a pimp, or a 'Fagin' ala Oliver Twist, is violating the law even if not a party to the actual criminal act.

[JoelKatz]

Show me an actual case where a contract (NOT some other actionable matter) was enforced against a someone who was not a party to the contract either as a direct signatory or an agent or participant in a direct signatory.

There are many such examples in our world, largely because it is not Libertarian.
http://en.wikipedia.org/wiki/Tortious_interference

In a Libertarian world, some of these cases would still exist and some wouldn't. But they would be understood largely on the basis of weak agency and indirect parties rather than "the government passed a law that says you can't do that, so you can't".

Say Jack loans Jeff some film that can be destroyed by light. Mark trespasses on Jeff's property and exposes the film to light. Jack can sue Mark for the damages he suffered as a result of Mark's trespass. If Mark wasn't trespassing, Jeff would be the primary responsible party, because he certainly can reasonably be expected to protect film from light exposure by those he authorized. But he can't police an intruder. (You might argue Jack should sue Jeff and then Jeff has to add Mark as an additional party. But if Jeff ignores the lawsuit, Jack should certainly be able to go after Mark directly.) If a wrong against one party harms another, the harmed party has a suit.

Now imagine Jack loans Jeff his poem pursuant to a contract where Jeff agrees not to share it. If Mark conspires with Jeff to share the poem even though Mark promised not to let anyone do that, the contract is enforceable against him under a direct agency theory. If he doesn't conspire with Jeff, he has to trespasses to get the poem, Jack has an action against him because his trespass makes him an indirect party just as in the film example.

[Raize]

No offense toast, but Kinsella's paper "Against Intellectual Property" is found in a Google search and is an easy read. Also, there's a number of YouTube videos where he's given speeches on the topic.

Here's a portion of a post I made about a year ago on the topic:

I basically framed Kinsella's argument in such a fashion that [Person_I_Was_Talking_To] cannot reasonably reply in favor of intellectual property.

This is a libertarian-utilitarian position that relies on the false premise logical fallacy.

1) If a person has innovated, it is because of intellectual property laws protecting their work.
2) Innovation makes people happy.
3) Therefore, we should support intellectual property laws.

The premise here, #1, while syntactically-correct, is actually incorrect. Utilitarians take this for granted, however. They rely on the fact that their audience accepts that the premise is the only possible conclusion for why people innovate. They also use words like "optimal level" if you disagree that intellectual property laws provide innovation. However I asked a few questions on the free market to get [Person_I_Was_Talking_To] to verify he only legitimately saw a need to intervene in the market if there was a market failure. This is a distinction from "optimal level", because libertarian-utilitarians distinguish themselves from left-utilitarians in that they want to practice restraint, and only intervene if absolutely necessary. In other words, they don't want to make subjective calls.

My point here was that when it comes to deriving man of his liberties, the onus is on the person wanting to take the liberties away to actually and legitimately prove that it is worthwhile. This is why I asked for just one example where there was a clearly-measurable increase in happiness due to IP law.

With public goods like a lighthouse, you could reasonably make such an argument because you can potentially find more people benefiting from it than paying for it, especially over time.

However, with intellectual property you cannot, because there is clearly at least one person upset that you are punishing them, and the increase in happiness for the person holding the intellectual property is immeasurable and cloudy at best. Additionally, it is unreasonable to make the argument that their happiness is greater than that of the person you are punishing, or the next person, or the next person, or the next person...

Man has an innate evolutionary (or God-given) desire to reproduce, this means we will innovate in order to gain whatever possible edge we can over other potential mates. We don't need artificial incentives to do this, and, in fact, I contend that such encumbrances only hinder innovation. That's basically my point and that is what empirical evidence shows. The first man to make the wheel did not do so because his work was going to be protected. Shakespeare based most of his works off of other's IP and reinforced his "copyright" by regularly updating and revising his plays, not using government thugs. Game developers today enforce their IP by making content "subscribable". IE, you pay a monthly fee.

Monthly fees are the model for most current and future IP that I know of in movies, games, and music. A smart theater of the "future" should be offering a subscription-based model where you pay a monthly fee to watch movies on the big screen. These changes do not require government intervention and are a great business model for the current environment.

For Kinsella's full paper (where he makes the points against the deontological argument, primarily):
http://www.mises.org/journals/jls/15_2/15_2_1.pdf

[Mr2001]

Say Jack loans Jeff some film that can be destroyed by light. Mark trespasses on Jeff's property and exposes the film to light. Jack can sue Mark for the damages he suffered as a result of Mark's trespass. If Mark wasn't trespassing, Jeff would be the primary responsible party, because he certainly can reasonably be expected to protect film from light exposure by those he authorized. But he can't police an intruder. (You might argue Jack should sue Jeff and then Jeff has to add Mark as an additional party. But if Jeff ignores the lawsuit, Jack should certainly be able to go after Mark directly.) If a wrong against one party harms another, the harmed party has a suit.

Now imagine Jack loans Jeff his poem pursuant to a contract where Jeff agrees not to share it. If Mark conspires with Jeff to share the poem even though Mark promised not to let anyone do that, the contract is enforceable against him under a direct agency theory. If he doesn't conspire with Jeff, he has to trespasses to get the poem, Jack has an action against him because his trespass makes him an indirect party just as in the film example.

You're overlooking an important difference between exposing film to light and sharing a poem. In the first scenario, Mark has damaged Jack's property, and frankly I suspect he'd be considered the primary responsible party even if he weren't trespassing (unless Jeff tricked him into damaging the film). In the second scenario, Mark has caused no harm to Jack; the only possible "wrong" in that situation would be the violation of the contract between Jack and Jeff, but if he's trespassing, there's been no wrong committed at all because the contract hasn't been breached.

[JoelKatz]

You're overlooking an important difference between exposing film to light and sharing a poem. In the first scenario, Mark has damaged Jack's property, and frankly I suspect he'd be considered the primary responsible party even if he weren't trespassing (unless Jeff tricked him into damaging the film).

Not at all. Ordinarily, people have a reasonable expectation that they can turn lights on and not break things. If he wasn't trespassing, he has done nothing wrong, the responsibility would be wholly on the person who left the vulnerable film in an area where it could easily and innocently be exposed to light and who then allowed people into that area.

However, when we trespass, we assume liability for any damage we do because the trespass itself is the predicate wrongful act. You can leave our valuable painting on the table to dry. If you invite someone into your home and they spill soda on it, they can argue you shouldn't have left it there and invite them in. But a trespasser can make no such argument and so is responsible for the damage. For liability to exist, the person has to do something negligent or willfully damaging. Turning on a light in a house you were invited into is neither.

In the second scenario, Mark has caused no harm to Jack; the only possible "wrong" in that situation would be the violation of the contract between Jack and Jeff, but if he's trespassing, there's been no wrong committed at all because the contract hasn't been breached.

Of course if Mark actually caused no harm to Jack, then even though Jack did something wrong, Mark has zero damages and so no reason to sue. But assume for the sake of argument Jack can demonstrate actual harm fairly traceable to Mark's trespass. For example, say he had a publishing contract for the poem and the publisher backs out.

You have to accept those kinds of harms. Otherwise, I can spray black paint all over your Rembrandt and you have no damages. After all, it's still paint on canvas. The fact that other people will no longer pay as much for it or pay to see it has to be a recognizable damage.

[myrkul]

You have to accept those kinds of harms. Otherwise, I can spray black paint all over your Rembrandt and you have no damages. After all, it's still paint on canvas. The fact that other people will no longer pay as much for it or pay to see it has to be a recognizable damage.

At least use an appropriate analogy. Such as: photocopying or photographing the painting, instead of defacing it.

[JoelKatz]

At least use an appropriate analogy. Such as: photocopying or photographing the painting, instead of defacing it.

There is no relevant difference, that's why I used the analogy. They both cause no significant objective changes to the object from a physical, materialist point of view. They both change its subjective and market value. They are both things the rightful owner of the object took steps to prevent. They both took a wrongful act on the person doing them.

How do you distinguish between a trespasser who gets a footprint on your floor from a trespasser who burns down your house? You can't find it in physics and science. You find it in market value. A footprint on a floor doesn't make the house worthless. Burning it down does. But they're both just physical changes.

Once you have a wrongful act, the reason for the damages don't matter. So long as they are fairly traceable to the wrongful act and suffered by someone, they're redressable.

Say I stop you from leaving a store (a wrongful act) and say you miss a critical business meeting (a harm). Even though I didn't physically change you in any way, aren't I still liable for your demonstrated damages from missing the business meeting? That harm is fairly traceable to my wrongful act. It doesn't matter whether I physically changed you or defaced you. It just matters that my act was wrongful and caused your harm.

[Mr2001]

You have to accept those kinds of harms. Otherwise, I can spray black paint all over your Rembrandt and you have no damages. After all, it's still paint on canvas. The fact that other people will no longer pay as much for it or pay to see it has to be a recognizable damage.

Nonsense: spraying paint on my canvas when I don't want it there is a harm in itself. You're messing with my property. Spraying paint on my walls or my couch is a harm too, even if it has no effect (or even a positive effect) on the value of that property - as the owner, it's up to me to decide where it stays and what gets stuck to it.

If, as myrkul suggests, you simply take a photograph of the painting, then I've suffered no harm. Even if he uses that photo to make a second copy of the painting, reducing the price people will pay for mine, I've still suffered no harm for a couple reasons:

1. The money those people might have paid was all theoretical; it didn't belong to me and wasn't even promised to me, so I haven't lost it in any greater sense than I "lose" $100 million when the numbers on my PowerBall ticket don't get drawn.

2. If we consider this an actionable harm, then we must also include everything else that diminishes the resale value of my Rembrandt. Maybe a stash of new Rembrandts floods the market, or a new biography comes out that proves Rembrandt was a horrible person so no one wants his paintings, or a new biography comes out that proves I'm a horrible person so no one wants to trade with me. All of these diminish the price I can get for my Rembrandt, so I guess we have to outlaw those as well?

[Mr2001]

How do you distinguish between a trespasser who gets a footprint on your floor from a trespasser who burns down your house? You can't find it in physics and science. You find it in market value. A footprint on a floor doesn't make the house worthless. Burning it down does. But they're both just physical changes.

Market value is right, but I'd say it's not the value of the house that matters - it's the cost of restoring it to its original state. Cleaning up a footprint takes a few minutes; you could hire someone to do it for well under $100. Rebuilding a house takes months of effort and tons of material; it'll cost you tens of thousands of dollars to restore it, plus the cost of renting another home in the meantime. Those are the damages.

[JoelKatz]

1. The money those people might have paid was all theoretical; it didn't belong to me and wasn't even promised to me, so I haven't lost it in any greater sense than I "lose" $100 million when the numbers on my PowerBall ticket don't get drawn.

Then if I blow up your car, your damages are all theoretical. Maybe it would have broken down and cost more to repair than it was worth. Maybe you would never have sold it.

2. If we consider this an actionable harm, then we must also include everything else that diminishes the resale value of my Rembrandt. Maybe a stash of new Rembrandts floods the market, or a new biography comes out that proves Rembrandt was a horrible person so no one wants his paintings, or a new biography comes out that proves I'm a horrible person so no one wants to trade with me. All of these diminish the price I can get for my Rembrandt, so I guess we have to outlaw those as well?

As I quite clearly said, their has to be a wrongful act and the harm has to be fairly traceable to a wrongful act. Of course it is perfectly legitimate to "kill with legal blows".

Suppose this happens:
1) I write a novel and have a contract to sell it.
2) You break into my house, open my safe, and copy the novel. You post it on the Internet.
3) My publisher cancels the contract.
You would have to argue that my harm is not fairly traceable to your wrongful act. That's utterly absurd. It's just as traceable as if I had a contract to sell a painting and you defaced it.

[JoelKatz]

Market value is right, but I'd say it's not the value of the house that matters - it's the cost of restoring it to its original state. Cleaning up a footprint takes a few minutes; you could hire someone to do it for well under $100. Rebuilding a house takes months of effort and tons of material; it'll cost you tens of thousands of dollars to restore it, plus the cost of renting another home in the meantime. Those are the damages.

The cost to restore even very cheap items to their original state can be exorbitant. And in some cases, even if you restore something to its original state, additional harm is still done (like the cost of renting another home in the meantime). You have to sum all the actual damages fairly attributable to the act. It's actually not as simple as "cost to restore" or "market value".

There are also lots of cases where figuring out if damages are "fairly attributable" to a wrongful act can be tricky. For example, a doctor mistakenly tells a patient a certain type of harm cannot happen from a procedure she is considering. She has the procedure and suffers that harm. Assume it is agreed that she would have had the procedure anyway. If she suffers the harm, is it fairly attributable to the doctor's erroneous statement?

Or suppose a railroad negligently sends a person to the wrong destination. They apologize and put them up in a hotel overnight to send them to where they were supposed to go the next day. If the hotel catches on fire and their property is damaged, is that harm fairly attributable to the railroad's negligence?

It's remarkably subtle and you can find lots of examples where it's tricky to determine. That's what courts are for.

[Mr2001]

Then if I blow up your car, your damages are all theoretical. Maybe it would have broken down and cost more to repair than it was worth. Maybe you would never have sold it.

You say that as though the car itself doesn't matter! First I had a car, then you blew it up, and now I have no car. All I have is a pile of shards that I can't drive to work. Those are tangible damages.

As I quite clearly said, their has to be a wrongful act and the harm has to be fairly traceable to a wrongful act.

This seems both unnecessary and a little too convenient. Harming me is a wrongful act in itself - it's wrong to harm people, isn't it? If diminishing the resale value of my property is a legitimate, actionable harm, how can you say no wrongful act has taken place when you do it?

The cost to restore even very cheap items to their original state can be exorbitant.

In that case you'd use the replacement cost, unless you can make a convincing argument that a replacement is insufficient.

And in some cases, even if you restore something to its original state, additional harm is still done (like the cost of renting another home in the meantime). You have to sum all the actual damages fairly attributable to the act. It's actually not as simple as "cost to restore" or "market value".

Correct, but you have to be careful not to include phony, wishful damages in that sum.

[JoelKatz]

Then if I blow up your car, your damages are all theoretical. Maybe it would have broken down and cost more to repair than it was worth. Maybe you would never have sold it.

You say that as though the car itself doesn't matter! First I had a car, then you blew it up, and now I have no car. All I have is a pile of shards that I can't drive to work. Those are tangible damages.

Right, but think about why that matters. It's remarkably subtle. Is it because the car is now worth less? Not really because there is no right to have your property hold its value. Is it because the car won't do what you need it to do? Not really because there is no right to have your property remain useful to you. The crux really is that you suffer actual damages that are fairly attributable to my wrongful act. You have a right not to be the victim of wrongful acts.

As I quite clearly said, their has to be a wrongful act and the harm has to be fairly traceable to a wrongful act.

This seems both unnecessary and a little too convenient. Harming me is a wrongful act in itself - it's wrong to harm people, isn't it? If diminishing the resale value of my property is a legitimate, actionable harm, how can you say no wrongful act has taken place when you do it?

Simply diminishing the value of property is not a wrongful act. I can diminish the value of your Rembrandt by selling my 10 Rembrandts. That's not wrongful. There is no right to a high resale value. Rights have to have some source. There has to be some wrongful act or some negligence or you have to meet one of the narrow special cases where this is not required (strict liability). If you can kill with legal blows, that's fair.

The cost to restore even very cheap items to their original state can be exorbitant.

In that case you'd use the replacement cost, unless you can make a convincing argument that a replacement is insufficient.

Some items are irreplaceable. And in some cases, a replacement doesn't fully compensate the person. There's no simple formula.

And in some cases, even if you restore something to its original state, additional harm is still done (like the cost of renting another home in the meantime). You have to sum all the actual damages fairly attributable to the act. It's actually not as simple as "cost to restore" or "market value".

Correct, but you have to be careful not to include phony, wishful damages in that sum.

I agree. "If you hadn't hit me with your car, I would have turned my business around" doesn't fly without evidence. You have to substantiate your damages, but the threshold isn't particularly high. More likely than not is sufficient.

[toast]

Evidently you have a misunderstanding of what are rights vs. civil liberties.

Rights were identified by humans, not created.

Okay. Then please name one human right that is created by this universe and identified by humans, and tell me the science behind how this universe created that human right.

Please. Agaumoney, your argument makes absolutely no sense to me. What argument could you use to support the idea that the right to life is a fundamental right that already existed and humans simply identified that you could not use to argue that the right to delicious ice cream is also fundamental and not just created by me right now?

[Mr2001]

You say that as though the car itself doesn't matter! First I had a car, then you blew it up, and now I have no car. All I have is a pile of shards that I can't drive to work. Those are tangible damages.

Right, but think about why that matters. It's remarkably subtle. Is it because the car is now worth less? Not really because there is no right to have your property hold its value. Is it because the car won't do what you need it to do? Not really because there is no right to have your property remain useful to you. The crux really is that you suffer actual damages that are fairly attributable to my wrongful act. You have a right not to be the victim of wrongful acts.

That's quite an interesting concept of property rights you have there, but it bears no relation to mine.

I say it matters because my property right is the right to keep my property in the place and the configuration I prefer (provided I have the right to occupy that place). Plain and simple, no weaselly subtleties. It's not about the value or even the utility of my property: it's about the physical matter it's made of, and my control over where it's located and how it's arranged.

That concept of property derives from the nature of physical matter, which is only able to be in one place at a time. You can't drive my car to New York at the same time I want to drive it to Los Angeles. You can't blow it up while I keep it intact. It's one or the other, so we need some means to decide who gets their way. Our society has chosen to do that by assigning an owner to the car and letting the owner decide where it will be. Since I'm the owner, you're violating my property rights if you move or alter the car against my will; the damages I suffer are approximately equal to the cost of restoring it to the way I want it.

Rights have to have some source. There has to be some wrongful act or some negligence or you have to meet one of the narrow special cases where this is not required (strict liability). If you can kill with legal blows, that's fair.

This seems circular. How do we know whether an act is "wrongful" without knowing whether it violates rights?

[Reikoku]

It's worth noting that libertarians are a split camp on this issue, and I'm firmly on the Randist side. Not only are intellectual property rights valid, but that they are the most fundamentally valid rights of all. This is not from a utilitarian point of view, but from a natural rights perspective.

In the end, any right to property which you've built is devolved from the right to the product of your creation. You don't just build a house, you have to be able to process a design through your mind, and be able to iron out the kinks, to engineer it. Similarly, the right to self-ownership comes principally from your ability to enact self-ownership as a human being. Otherwise, we'd have to grant the right to self-ownership to chairs and televisions.

When you look at things from this perspective, you realise that the fundamental single right is the right to the products of your mind, which includes the right to control how those products are used, should a buyer so agree. I'm iffy on the right to enforce that contract upon an unwilling third party of course, because it'd be very hard to prove that the third party knew it even existed, even if I contractually bound the seller to pass it on.

“Man’s mind is his basic tool of survival. Life is given to him, survival is not. His body is given to him, its sustenance is not. His mind is given to him, its content is not. To remain alive he must act and before he can act he must know the nature and purpose of his action. He cannot obtain his food without knowledge of food and of the way to obtain it. He cannot dig a ditch––or build a cyclotron––without a knowledge of his aim and the means to achieve it. To remain alive, he must think.”
- Atlas Shrugged

“Patents and copyrights are the legal implementation of the base of all property rights: a man’s right to the product of his mind.”
- Capitalism: The Unknown Ideal

[JoelKatz]

I say it matters because my property right is the right to keep my property in the place and the configuration I prefer (provided I have the right to occupy that place). Plain and simple, no weaselly subtleties. It's not about the value or even the utility of my property: it's about the physical matter it's made of, and my control over where it's located and how it's arranged.

So if I break into your house (without damaging anything), go through all your stuff, and put everything back the way it was, that doesn't violate any of your property rights?

That concept of property derives from the nature of physical matter, which is only able to be in one place at a time. You can't drive my car to New York at the same time I want to drive it to Los Angeles. You can't blow it up while I keep it intact. It's one or the other, so we need some means to decide who gets their way. Our society has chosen to do that by assigning an owner to the car and letting the owner decide where it will be. Since I'm the owner, you're violating my property rights if you move or alter the car against my will; the damages I suffer are approximately equal to the cost of restoring it to the way I want it.

I sneak into a private museum without paying the required fee. Nothing wrong with that?

Rights have to have some source. There has to be some wrongful act or some negligence or you have to meet one of the narrow special cases where this is not required (strict liability). If you can kill with legal blows, that's fair.

This seems circular. How do we know whether an act is "wrongful" without knowing whether it violates rights?

It is wrongful if it violates rights. If I can damage your property without violating your rights, that's tough.

Say I shine a flashlight in your window. That might or might not violate your rights, most people would say it doesn't. Say I shine a flashlight in your window and ruin some film that you had developing. The ruining of the film is the damage you suffered, actionable if and only if shining the flashlight in your window violated your rights.

You seem to have this backwards. If my violation of your rights damages your property, that's actionable. But damaging your property alone is not a violation of your rights. You have no right not to have another's actions damage your property. Otherwise, if I drove my car down my driveway and created vibrations that ruined your glass structure, that'd be actionable even though driving my car down my driveway is something I'm supposed to have the right to do.

Your property right means you have the right to say what can and cannot be done with your property, subject to other people's rights. (For example, if your ball lands in my yard. Or if you want to use your baseball bat to break my nose.) One type of damage you might suffer is physical damage to your property. But there are other types of damages. In theory, a violation of any right could result in any type of damage. There's no law that says that the only damage that can result from a violation of property rights is physical damage to property.

Say you and I both have a shot at a particular client. It's near certain the client will pick you or me. I disconnect a wire in your car. Your car doesn't start. But there's no damage, reconnecting the wire costs nothing. If you miss the meeting and lose your chance at the client, is that actionable? I violated your property rights not by damaging your car but by trespassing on it. The damages aren't the physical changes to the car but the meeting you missed. I violated your rights, you have damages fairly attributable to that violation.

[myrkul]

So if I break into your house (without damaging anything), go through all your stuff, and put everything back the way it was, that doesn't violate any of your property rights?

I sneak into a private museum without paying the required fee. Nothing wrong with that?

Trespassing is well covered. There's no real damages, though.

[alexbasasa]

People are against monopolies. Rename them. They are now called "property". People are now in favor of monopolies.

[JoelKatz]

Trespassing is well covered. There's no real damages, though.

Exactly. You need three elements:

1) A wrongful act, that is, one that violates a right.

2) A harm, that is, provable damages.

3) A connection between the wrongful act and the harm.

Trespassing on property is a wrongful act. Physical damage to property is a harm. Property rights and not just the right not to have your property harmed, they're a right to not have your property trespassed on or messed with without your consent. Physical damage to property is not the only harm that can result from a trespass.

There are tons of exceptions to these rules though, there have to be or you get very seriously crazy result in weird cases. Some of those exceptions are absolutely required to have a sensible legal system and some of them are judgment calls that reasonable people can disagree on. For example, I could see a Libertarian society making an exception to the requirement of provable harm in the case where the wrongful act is a trespass that violates a significant privacy right.

[JoelKatz]

In that case you are violating another person's intellectual property by living in a house, because tenths of thousands of years ago he or she built the first house and you haven't gotten permission from that person or descendants to copy his or her invention. Why do you not respect this person's "natural" intellectual property rights when you expect other people to respect yours?

All rights have contours. These are not the contours of intellectual property rights. Even the right to life and to be left alone has contours. For example, say you're on the way to the hospital. I stop by moving in front of you to you to ask you what time it is. Suppose it could be proven that my stopping you delayed your arrival at the hospital and caused your death. Well, tough. This type of 'minimal invasion' simply doesn't violate the right.

You surely have a right not to have someone shine a million watt spotlight in your window at night. But if my flashlight brushes across your window, there is no violation of your rights. Again, that type of minimal invasion simply doesn't violate the right.

[Mr2001]

So if I break into your house (without damaging anything), go through all your stuff, and put everything back the way it was, that doesn't violate any of your property rights? [...] I sneak into a private museum without paying the required fee. Nothing wrong with that?

My right to control the configuration of my property includes keeping you out of my house, just like it includes keeping your paint off of my Rembrandt. Again, this derives from the nature of physical space: the house can't contain everyone and everything all at once, so someone has to decide what goes inside, and that person is the owner. Same goes for the museum.

Say I shine a flashlight in your window. That might or might not violate your rights, most people would say it doesn't. Say I shine a flashlight in your window and ruin some film that you had developing. The ruining of the film is the damage you suffered, actionable if and only if shining the flashlight in your window violated your rights.

Are you saying you're entitled to ruin all my film unless I agree to outlaw shining flashlights through windows?

What's the purpose of this Rube Goldberg system of rights and wrongs? Wouldn't it make a lot more sense to say that what happens to me and my property as a result of your act is what determines whether I've been wronged?

You seem to have this backwards. If my violation of your rights damages your property, that's actionable. But damaging your property alone is not a violation of your rights. You have no right not to have another's actions damage your property.

I beg to differ. If what you call "property rights" don't even fulfill the basic requirement of stopping someone else from breaking my stuff, then they're so watered down as to be worthless.

Otherwise, if I drove my car down my driveway and created vibrations that ruined your glass structure, that'd be actionable even though driving my car down my driveway is something I'm supposed to have the right to do.

Sometimes one person's rights conflict with another person's rights, but we don't need to demolish those rights in order to resolve the conflict.

Say you and I both have a shot at a particular client. It's near certain the client will pick you or me. I disconnect a wire in your car. Your car doesn't start. But there's no damage, reconnecting the wire costs nothing. If you miss the meeting and lose your chance at the client, is that actionable? I violated your property rights not by damaging your car but by trespassing on it. The damages aren't the physical changes to the car but the meeting you missed. I violated your rights, you have damages fairly attributable to that violation.

A meeting with a potential client has no tangible value, even if I wish to have his money and I'm "near certain" my wish will come true. It's not mine yet.

That doesn't mean there's no damage from your act, though. Clearly reconnecting the wire cost something, otherwise I would've reconnected it in zero seconds and gotten to the meeting on time. It cost me the time it took to diagnose the problem and reconnect the wire, and we can assign a value to that time.

[JoelKatz]

Are you saying you're entitled to ruin all my film unless I agree to outlaw shining flashlights through windows?

Yes, exactly. It cannot be the case that I have the right to shine a flashlight in your window and you can still sue me if I do so and damage your film. If it's my right to shine a flashlight in your window, it's your obligation to protect your property from a flashlight.

What's the purpose of this Rube Goldberg system of rights and wrongs? Wouldn't it make a lot more sense to say that what happens to me and my property as a result of your act is what determines whether I've been wronged?

It won't work, rights would hopelessly conflict. How can I have a right to drive my car down my driveway if you can sue me if my doing so knocks down your fragile glass structure?

You seem to have this backwards. If my violation of your rights damages your property, that's actionable. But damaging your property alone is not a violation of your rights. You have no right not to have another's actions damage your property.

I beg to differ. If what you call "property rights" don't even fulfill the basic requirement of stopping someone else from breaking my stuff, then they're so watered down as to be worthless.

Your scheme will cause hopeless conflicts. How can you have the right not to have vibrations damage your fragile glass structure and me have the right to drive my car onto my driveway?

Otherwise, if I drove my car down my driveway and created vibrations that ruined your glass structure, that'd be actionable even though driving my car down my driveway is something I'm supposed to have the right to do.

Sometimes one person's rights conflict with another person's rights, but we don't need to demolish those rights in order to resolve the conflict.

You seem to be recognizing as rights things that simply are not rights. There is no right not to suffer damages. Life is damage.

Nobody would want to live in your world. A person doing normal activities that they have every right to do could wind up liable for massive damages even though they didn't violate the rights of others one bit. Say I build a car that blows up if anyone utters the word "cheese". Does this mean nobody can ever utter the word "cheese"? Does this mean there's some rights conflict? No, it doesn't. There's no right not to have your car blow up. The right is about a zone of exclusivity, not about freedom from adverse consequences from the rightful actions of others.

Say my house is in danger of falling down. I ask you to fix it and you refuse. Say then my house falls down. Why didn't your not fixing my house violate my right not to have my house damaged? There has to be (with a very few special expections) a wrongful act, an act that violates the right.

Say you and I both have a shot at a particular client. It's near certain the client will pick you or me. I disconnect a wire in your car. Your car doesn't start. But there's no damage, reconnecting the wire costs nothing. If you miss the meeting and lose your chance at the client, is that actionable? I violated your property rights not by damaging your car but by trespassing on it. The damages aren't the physical changes to the car but the meeting you missed. I violated your rights, you have damages fairly attributable to that violation.

A meeting with a potential client has no tangible value, even if I wish to have his money and I'm "near certain" my wish will come true. It's not mine yet.

That doesn't mean there's no damage from your act, though. Clearly reconnecting the wire cost something, otherwise I would've reconnected it in zero seconds and gotten to the meeting on time. It cost me the time it took to diagnose the problem and reconnect the wire, and we can assign a value to that time.

You're disputing the hypothetical rather than addressing it. The hypothetical is that no physical damage to your car takes place but you can prove you missed the meeting and suffered damages.

[Mr2001]

Yes, exactly. It cannot be the case that I have the right to shine a flashlight in your window and you can still sue me if I do so and damage your film. If it's my right to shine a flashlight in your window, it's your obligation to protect your property from a flashlight.

Let's do a simple substitution to illustrate how absurd this is.

"It cannot be the case that I have the right to swing a baseball bat in the park and you can still sue me if I do so and damage your face. If it's my right to swing a baseball bat in the park, it's your obligation to protect your body from a baseball bat."

Your right to swing a baseball bat is, of course, not absolute. In general you have the right to swing your bat, but my right not to have my face bashed in takes precedence. That places an implicit limit on your right to swing.

Likewise, in general you have the right to shine your flashlight, but my right not to have my property damaged takes precedence. That places an implicit limit on your right to shine it, but the limit doesn't have to be as broadly drawn as you've proposed: we don't have to ban you from shining the flashlight through all windows with no regard to what's on the other side.

It won't work, rights would hopelessly conflict. How can I have a right to drive my car down my driveway if you can sue me if my doing so knocks down your fragile glass structure?

Yes, rights do conflict, which is why we've come up with ways to resolve those conflicts.

Your right to drive your car in your driveway is not absolute. Suppose I'm standing in your driveway, with your permission, when suddenly you decide it's time to drive your car down the driveway. You run me over and I sue you. You'll quickly find that my right not to be run over takes precedence over your right to drive.

My right to have my fragile glass structure remain intact is not absolute either. Your right to drive in your driveway takes precedence, assuming reasonable circumstances (driving at a normal speed, in a vehicle that produces typical levels of vibration, with no malicious intent, etc.).

Say my house is in danger of falling down. I ask you to fix it and you refuse. Say then my house falls down. Why didn't your not fixing my house violate my right not to have my house damaged?

Because I'm not the one who damaged your house. Refusing to fix your house is different from knocking it down. The culprit you're looking for might be an earthquake, a strong wind, or termites, but it isn't me or anyone else who simply declined to take action to stop an event they had no preexisting obligation to stop.

You're disputing the hypothetical rather than addressing it. The hypothetical is that no physical damage to your car takes place but you can prove you missed the meeting and suffered damages.

No, I'm addressing it by pointing out that you're misinterpreting the events in the hypothetical. There was physical damage to the car: you rearranged its parts against my wishes. It wasn't permanent, but if it caused me to miss the meeting, then it must have taken some time to repair, and that time is the only tangible damage I've suffered.

If you believe there's some way your sabotage could have caused me to miss the meeting without costing me any time, would you mind spelling it out? I don't see how I can respond to the hypothetical if there's important context missing.

[JoelKatz]

Your right to drive your car in your driveway is not absolute.

That's because there is no such right. The right is strictly a negative right, the right not to have anyone interfere with my car or my driveway.

Suppose I'm standing in your driveway, with your permission, when suddenly you decide it's time to drive your car down the driveway. You run me over and I sue you. You'll quickly find that my right not to be run over takes precedence over your right to drive.

That's only because you've mis-stated the right as a positive right. The right is not to have anyone interfere with my property without my permission. Since you have permission, you aren't in any way affecting my rights. Rights are not yokes that tie us down and prevent us from doing things. They are spheres of moral authority over which none may intrude.

My right to have my fragile glass structure remain intact is not absolute either.

Only because there is no such right at all. Imagine you have two glass structures, substantially identical. There are two people and one of them hits each of your glass structures with a hammer, intending to damage it. Assuming neither structure breaks, have they violated your property rights?

The property right is a zone of authority. It's your property, so you say what happens to it. If someone violates this right, and you suffer damage as a result, that damage is recoverable in court. The damage could be physical damage to the property, it could be loss of use of the property, or it could be anything else so long as it's a real damage and it's fairly attributable to the action that violated that right.

[Mr2001]

Your right to drive your car in your driveway is not absolute.

That's because there is no such right. The right is strictly a negative right, the right not to have anyone interfere with my car or my driveway.

Yes, the right to do something is equivalent to the right not to have anyone stop you from doing it.

My right to have my fragile glass structure remain intact is not absolute either.

Only because there is no such right at all. Imagine you have two glass structures, substantially identical. There are two people and one of them hits each of your glass structures with a hammer, intending to damage it. Assuming neither structure breaks, have they violated your property rights?

They're attempting to violate my property rights by carrying out an act that's intended to do so and has a high chance of succeeding. I've suffered no actual damages, but I think that's close enough to be considered a violation: I have the right not to be subject to serious attempts to violate my rights.

The property right is a zone of authority. It's your property, so you say what happens to it. If someone violates this right, and you suffer damage as a result, that damage is recoverable in court. The damage could be physical damage to the property, it could be loss of use of the property, or it could be anything else so long as it's a real damage and it's fairly attributable to the action that violated that right.

Well, I have a hard time imagining a real damage you could suffer that wouldn't involve damaging, moving, or rearranging the property. But I don't think I can object to this argument unless you're going to say that loss of potential revenue counts as a "real damage".

[JoelKatz]

Well, I have a hard time imagining a real damage you could suffer that wouldn't involve damaging, moving, or rearranging the property. But I don't think I can object to this argument unless you're going to say that loss of potential revenue counts as a "real damage".

Requiring certainty is kind of absurd. Even if I blow up your car, it could have blown up by itself a few minutes later.

One school of thought is that you have to prove the loss was more likely than not, and if so, you're entitled to the entire amount. (The 51% rule.) This seems pretty unreasonable to me.

Yet another is that you're entitled to the expected lost value. So if I deprive you of a 35% chance to make $15,000, your recovery is $5,250, the fair market value of a 35% chance of making $15,000.

Another is that you're never entitled to recovery for low probability losses, but you're entitled for the full recovery once a loss is at least somewhat probable. This means that if you have a lottery ticket whose numbers you haven't recorded, no recovery is possible if I rip it up, even though you just paid $1 for that ticket.

My own sense is that the "fair market value" of the loss comes the closest to what is actually fair. So if I can prove that you deprived me of a 1% chance at $1,000,000, I'm entitled to a $10,000 recovery.

[JoelKatz]

I simply don't understand this. What or whom grants me the right not to have someone shine a million watt spotlight in my window at night, but doesn't grant me the right to not have a flashlight brush across my window? And why is it like this?

It's a consequence of the differences in the situations. It's not granted by anyone or anything, it's a logical consequence of the arrangements. It's like how the sky looks blue and the grass looks green. It's a directly-perceivable consequence of their differing natures, readily apparent both to people who understand what colors and how they work and to people who have no idea what colors are or how they work. Just as nature included in us a mechanism for the perception of colors, nature included in us a mechanism for the perception of rights.

[Agozyen]

 Coming in late to this thread, but here's a perfect example of how IP laws and strict copyright can stifle creativity.

 http://www.techdirt.com/articles/20110506/15124514188/when-copyright-contracts-can-get-way-art.shtml

 Long story short -

 Museum hires artist to create art for exhibit, artist agrees but has stipulations, museum agrees, artist creates said art, museum requests unlimited revisions and produces a contract to be signed, artist declines, weeks of negotiation follow, museum caves to original terms of oral agreement, everyone is happy, museum decides to not use the art, artist releases art anyway because of Free License.


 In other words, after creating the art and after negotiation, the museum decided to not use her art.  If it had been under traditional copyright, the museum would own those images.  But because they decided not to use them in the exhibit, they would never have seen the light of day.  As a result of the artist wanting a Free License, she was able to release the images, free, to the public.

[em3rgentOrdr]

Coming in late to this thread, but here's a perfect example of how IP laws and strict copyright can stifle creativity.

 http://www.techdirt.com/articles/20110506/15124514188/when-copyright-contracts-can-get-way-art.shtml

 Long story short -

 Museum hires artist to create art for exhibit, artist agrees but has stipulations, museum agrees, artist creates said art, museum requests unlimited revisions and produces a contract to be signed, artist declines, weeks of negotiation follow, museum caves to original terms of oral agreement, everyone is happy, museum decides to not use the art, artist releases art anyway because of Free License.


 In other words, after creating the art and after negotiation, the museum decided to not use her art.  If it had been under traditional copyright, the museum would own those images.  But because they decided not to use them in the exhibit, they would never have seen the light of day.  As a result of the artist wanting a Free License, she was able to release the images, free, to the public.

Thanks for sharing that article.  An interesting read.  It's amazing how many corporate types and lawers are completely confused and taken off-balance when they come across the notion of free licenses.

As a musician myself, I share many of the sympathies with this artist as well about how copyright and contracts get in the way of art.

[twobits]

Disclaimer: I'm generalizing the anti-IP-rights position to all hardcore libertarians because I've seen several who hold this position. If you believe anti-IP-right are not consistent with what it actually means to be a libertarian, then correct me. I still want to know what people who do hold this position think, though.

I think you are wrong in this conclusion.  Some libertarians with libertarian leanings are also among the most ardent defenders of IP rights.   The question really is if you think ip exists.  If you do, then you feel that it should be protected from theft and bad faith contracts like any other property.   If you don't then you don't think a framework should exist to protect it.   Like with abortion there is a core belief at a different level then the politics itself that can have people of pretty much all political beliefs on both sides of these issues.

[JoelKatz]

Red and blue are labels we assign to different radio frequency ranges that exist in Nature.

Yes, we know that now because we understand the physical nature of light. But we were able to use colors long before we understood that.

Radio frequencies can be measured and thus can be proven to exist in Nature.

They can be measured now, but we used them long before we knew how to measure them. As for us being able to prove they exist in nature, we used them validly for a very long time when the only way to prove they existed in nature was to point at something and say "Look! See the color?". We can do all the things for rights that we did for colors before we understood their physical nature. And we used colors validly.

How do you measure what or whom grants me the right not to have someone shine a million watt spotlight in my window at night and what or whom doesn't grant me the right to not have a flashlight brush across my window? You can't because those are abstract ideas that exist only in our minds and not in Nature.

People made that exact same argument about colors before we understood their physical nature. "If someone says the sky and grass are the same color, how can you prove them wrong? Colors exist only in the mind, so you can't use them."

We don't know how to measure rights yet, just as we once didn't know how to measure colors. But we can use them because we perceive them directly, just as we did with colors. If someone says "I believe I have a right to torture children for pleasure" or "The grass and the sky look the same color to me (under ordinary conditions)", all we can say is that they are either lying or somehow their perceptual mechanism is broken. It is impossible to convince a person that he does not see what he knows he does see.

[Mr2001]

Requiring certainty is kind of absurd. Even if I blow up your car, it could have blown up by itself a few minutes later.

Sure, and in that case you wouldn't have been liable... but that's not what happened, so you are. If you think it's unfair to be blamed for causing an explosion that might have happened anyway, there's an easy way to avoid that: don't blow stuff up.

Adjusting damages based on wild speculation about what might have happened is just desperate wishful thinking.

My own sense is that the "fair market value" of the loss comes the closest to what is actually fair. So if I can prove that you deprived me of a 1% chance at $1,000,000, I'm entitled to a $10,000 recovery.

Such proof would be impossible for anything like a client meeting or a job interview, of course: they're not basing their decision on a coin toss. I can only see this working in a narrow set of cases, involving something with a known probability structure that can't be replaced, like a ticket for a discontinued lottery.

We don't know how to measure rights yet, just as we once didn't know how to measure colors. But we can use them because we perceive them directly, just as we did with colors. If someone says "I believe I have a right to torture children for pleasure" or "The grass and the sky look the same color to me (under ordinary conditions)", all we can say is that they are either lying or somehow their perceptual mechanism is broken. It is impossible to convince a person that he does not see what he knows he does see.

If there were billions of people who interpreted colors differently, who didn't see some color differences we did and saw others we didn't, we could hardly call their perception "broken". At best we could call it different.

Likewise, it's awfully presumptuous to claim that you just happen to have perfect perception of rights when you're surrounded by people who perceive them differently. If anyone's perception is broken, what makes you so sure it's not yours?

[toast]

But we can use them because we perceive them directly, just as we did with colors. If someone says "I believe I have a right to torture children for pleasure" or "The grass and the sky look the same color to me (under ordinary conditions)", all we can say is that they are either lying or somehow their perceptual mechanism is broken. It is impossible to convince a person that he does not see what he knows he does see.

Wait, I'm supposed to somehow "perceive rights directly"? What?

My understanding is that when I say "you have a right to not get beaten up by your neighbors", I mean "we live in a society where we generally agree that we would like to not get beaten up and we also have the primal ability to empathize with other human beings, so our laws (both written laws and unwritten moral codes) tell us that we should not beat you up or else the rest of society will punish us." It seems like you're claiming these rights somehow exist intrinsically and that we only discovered them. That makes absolutely no sense to me.

[JoelKatz]

Wait, I'm supposed to somehow "perceive rights directly"? What?

Yes, exactly. You are supposed to directly perceive that children have a right not to be tortured for pleasure just as you perceive directly that the sky is blue. If you say you do not, you are lying or broken. I do. The vast majority of other people do. If you don't, something's wrong with you. We don't know what yet -- perhaps you are "rights blind".

My understanding is that when I say "you have a right to not get beaten up by your neighbors", I mean "we live in a society where we generally agree that we would like to not get beaten up and we also have the primal ability to empathize with other human beings, so our laws (both written laws and unwritten moral codes) tell us that we should not beat you up or else the rest of society will punish us." It seems like you're claiming these rights somehow exist intrinsically and that we only discovered them. That makes absolutely no sense to me.

No, that's not what I'm claiming. A painting of the sky is just as blue as the sky, even though someone made the painting blue. And no matter what we agreed or what our society said or did, it would be just as obvious to a normal human being that children have a right not to be tortured for pleasure. (Though I can imagine no situations where this wouldn't be the case, I can't be 100% sure no such situations exist. I have seen none and cannot imagine any. But who knows.) We don't fully understand the source of this right yet, but that it exists is a directly-observable fact. Anyone with normal "rights vision" can see it.

I'm being somewhat whimsical, but my point is quite serious. The vast majority of normal human beings (perhaps sociopaths can't) can directly perceive that other human beings have rights. You can make an argument that some of the rights we think we see are somehow illusory, just as our color vision can be fooled by many optical illusions. But you can't deny that we see what we see. Any arguments that claim we don't will simply be laughed at. Just as you would laugh at me if I tried to convince you that the sky and the grass actually look the same color to you.

[toast]

Wait, I'm supposed to somehow "perceive rights directly"? What?

Yes, exactly. You are supposed to directly perceive that children have a right not to be tortured for pleasure just as you perceive directly that the sky is blue. If you say you do not, you are lying or broken. I do. The vast majority of other people do. If you don't, something's wrong with you. We don't know what yet -- perhaps you are "rights blind".

My understanding is that when I say "you have a right to not get beaten up by your neighbors", I mean "we live in a society where we generally agree that we would like to not get beaten up and we also have the primal ability to empathize with other human beings, so our laws (both written laws and unwritten moral codes) tell us that we should not beat you up or else the rest of society will punish us." It seems like you're claiming these rights somehow exist intrinsically and that we only discovered them. That makes absolutely no sense to me.

No, that's not what I'm claiming. A painting of the sky is just as blue as the sky, even though someone made the painting blue. And no matter what we agreed or what our society said or did, it would be just as obvious to a normal human being that children have a right not to be tortured for pleasure. (Though I can imagine no situations where this wouldn't be the case, I can't be 100% sure no such situations exist. I have seen none and cannot imagine any. But who knows.) We don't fully understand the source of this right yet, but that it exists is a directly-observable fact. Anyone with normal "rights vision" can see it.

I'm being somewhat whimsical, but my point is quite serious. The vast majority of normal human beings (perhaps sociopaths can't) can directly perceive that other human beings have rights. You can make an argument that some of the rights we think we see are somehow illusory, just as our color vision can be fooled by many optical illusions. But you can't deny that we see what we see. Any arguments that claim we don't will simply be laughed at. Just as you would laugh at me if I tried to convince you that the sky and the grass actually look the same color to you.

I think that it must take a really sick fuck to torture children for fun. I also would like to live in a society where children are not tortured for fun and where people who want to would be rehabilitated appropriately. I think children everywhere would agree with me. Therefore it is my opinion that we should make a legal social contract among all the people in this country to not torture children. We'll call this social contract a "right". We invented this right, and since most of us agree that it's a good one, we might even call it a more fundamental right. This right is particularly easy to "perceive" because most people come with the ability to empathize as a natural socio-biological mechanism for group preservation.

But you're claiming that ALL rights should be "perceivable" as clearly as this one, as if they exist in nature and we can observe them. I do not see how you could support in the face of evidence to the contrary in the form of contradictory social norms and moral codes in different parts of the world (for example: oppressive moral codes in some middle eastern countries. Are you claiming that ALL of those people [who were born and raised to believe in a certain set of morals] have a broken "rights perception"?).

[JoelKatz]

I think that it must take a really sick fuck to torture children for fun.

Right, that's because you know children have the right not to be tortured for fun. You are not lying or broken.

I also would like to live in a society where children are not tortured for fun and where people who want to would be rehabilitated appropriately. I think children everywhere would agree with me. Therefore it is my opinion that we should make a legal social contract among all the people in this country to not torture children.

Exactly. You know that this is the right thing to do.

We'll call this social contract a "right". We invented this right, and since most of us agree that it's a good one, we might even call it a more fundamental right. This right is particularly easy to "perceive" because most people come with the ability to empathize as a natural socio-biological mechanism for group preservation.

Oh, you're just using the word "right" to refer to something different from me. Our disagreement is purely verbal. When I say "right", I mean the *reason* we agree to structure society in this way. When you say "right", you mean the *fact* that we agreed to structure society this way. We have no real disagreement then. We both accept that both of these things exist.

But you're claiming that ALL rights should be "perceivable" as clearly as this one, as if they exist in nature and we can observe them. I do not see how you could support in the face of evidence to the contrary in the form of contradictory social norms and moral codes in different parts of the world (for example: oppressive moral codes in some middle eastern countries. Are you claiming that ALL of those people [who were born and raised to believe in a certain set of morals] have a broken "rights perception"?).

Does the sky *always* look blue? Does the ground *always* look green? No, it's not that people in other societies have different right perception, it's that they are looking at different things. Just as color is a complex result of the interaction of the light landing on an object, the surface composition of that object, the position of the observer, and so on, so rights (and the perception of them) are also the result of the interaction of many things.

Just as we understood that color has something to do with the interaction of light and the thing the light bounces off of long before we understood it in detail, we understand that rights are the result of the interaction between human beings and their environment. Change the environment, and the rights change. I can't imagine any environment in which children would not have the right not to be tortured for pleasure, just as I can't imagine any way complete darkness could look yellow, but I can't prove it's impossible.

[myrkul]

I think that it must take a really sick fuck to torture children for fun.

Right, that's because you know children have the right not to be tortured for fun. You are not lying or broken.

To be fair, Toast might be both. In fact, the statement you quoted precludes all options but Both or Neither. Just sayin'.




No, I don't think Toast is a child molester. Just pointing out an assumption. Carry on.

[JoelKatz]

To be fair, Toast might be both. In fact, the statement you quoted precludes all options but Both or Neither. Just sayin'.

Not to imply that this applies to Toast, who I'm sure is a wonderful human being, but many people who are broken also have learned to lie about it. Many sociopaths learn to act like normal people by pretending to be the way they're supposed to be.

I amend my previous statement:
"You are not lying xor broken."

[myrkul]

"You are not lying xor broken."

LOL. I'm going to start using eXclusive OR in regular speech from now on.

[toast]

I'm still not entirely convinced we're on the same page. When you say "change the environment, and the rights change", it is as if you're implying that rights are a characteristic of the real world, and humans look at it and interpret what the new correct set of rights are. It is as if there is some absolute right and wrong for any given situation, and unless you are "broken", you should be able to see it after giving it some thought. In other words, your ability to empathize gives you some new insight into outside world. I disagree. I think our ability to empathize and our protective instincts only drive us to make up rights that we convince our fellow humans to enforce, with no one set of rights being 'more correct' or closer to the 'real' set of rights. If humans had evolved without needing to protect themselves or their loved ones, there would be no empathy and consequently there would be no idea of rights.

[JoelKatz]

I'm still not entirely convinced we're on the same page. When you say "change the environment, and the rights change", it is as if you're implying that rights are a characteristic of the real world, and humans look at it and interpret what the new correct set of rights are. It is as if there is some absolute right and wrong for any given situation, and unless you are "broken", you should be able to see it after giving it some thought.

That's mostly correct. You can't see what color something is in a darkened room. There are many reasons you may not be able to see it, no matter how much you try.

In other words, your ability to empathize gives you some new insight into outside world. I disagree. I think our ability to empathize and our protective instincts only drive us to make up rights that we convince our fellow humans to enforce, with no one set of rights being 'more correct' or closer to the 'real' set of rights. If humans had evolved without needing to protect themselves or their loved ones, there would be no empathy and consequently there would be no idea of rights.

And if humans had evolved without light, there would be no colors. We did what we did, and as a result we have what we have.

How do you explain the widespread agreement that children have the right not to be tortured for pleasure independent of anyone's thoughts or feelings on the issue? Is it a coincidence? Or is there something in the real world, a part of objective reality, that corresponds to this? If there's a third alternative, I don't know what it is.

[toast]

How do you explain the widespread agreement that children have the right not to be tortured for pleasure independent of anyone's thoughts or feelings on the issue?

My point is that there is no widespread agreement that children should have that right independent of anyone's thoughts or feelings. There is widespread agreement ONLY BECAUSE most people have thoughts and feelings on the issue.

[JoelKatz]

My point is that there is no widespread agreement that children should have that right independent of anyone's thoughts or feelings.

How do you know? Before we understood what colors were, you could have argued that there was no green outside of someone's perception of green.

There is widespread agreement ONLY BECAUSE most people have thoughts and feelings on the issue.

Of course. But imagine if you could somehow wipe everyone's thoughts and feelings about this issue away. If they started thinking about the issue, those thoughts and feelings would return and the widespread agreement would re-emerge. So something other than the thoughts and feelings must account for the thoughts and feelings.

If nobody ever looked at the grass, the sensation of green and the agreement that the grass looks green goes away. But the grass is still green, and as soon as someone looks at it, they will see that it is green. The greenness of the grass is what explains why it looks green when people look at it, not the sensation they get when they look at it.

[toast]

My point is that there is no widespread agreement that children should have that right independent of anyone's thoughts or feelings.

How do you know? Before we understood what colors were, you could have argued that there was no green outside of someone's perception of green.

Correct. "green" is the experience you associate with electromagnetic radiation with a certain frequency. The electromagnetic waves exist outside of your mind, the experience does not. There is nothing "green" about the EM waves. It is only their interaction with the brain that gives rise to the experience of green.

There is widespread agreement ONLY BECAUSE most people have thoughts and feelings on the issue.

Of course. But imagine if you could somehow wipe everyone's thoughts and feelings about this issue away. If they started thinking about the issue, those thoughts and feelings would return and the widespread agreement would re-emerge. So something other than the thoughts and feelings must account for the thoughts and feelings.

If nobody ever looked at the grass, the sensation of green and the agreement that the grass looks green goes away. But the grass is still green, and as soon as someone looks at it, they will see that it is green. The greenness of the grass is what explains why it looks green when people look at it, not the sensation they get when they look at it.

The grass is still green only in the sense that because our brain would still function the same way, when we would see the same frequency of EM waves we would experience the same sensation.

When you say 'wipe everyone's brains', I can think of two different things you could mean:

1) We also wipe everyone's ability to empathize and our protective instinct we have for kids. In this case, we would not suddenly conjure up the idea that kids should not be tortured.
2) We wipe everyone's memories and past opinions, but our evolution-given instinct to empathize and protect kids remains. In this case, we would think up the idea that kids should have the right to not be tortured.

Edit: word order

[JoelKatz]

Correct. "green" is the experience you associate with electromagnetic radiation with a certain frequency. The electromagnetic waves exist outside of your mind, the experience does not. There is nothing "green" about the EM waves. It is only their interaction with the brain that gives rise to the experience of green.

Right. And it took a complex understanding of the physics of color to know that. And there are some interesting subtleties. Physically, mix of yellow and blue light is nothing like green light. But it looks just like green light to us. That's because of the quirks of how we perceive color. Our perception of colors results from a mix of the physics of color, the actual colors of the objects we look at, and the way our perceptual 'hardware' works. And we needed to understand the science of how light works and how our eyes work to sort that out.

The grass is still green only in the sense that because our brain would still function the same way, when we would see the same frequency of EM waves we would experience the same sensation.

Precisely.

When you say 'wipe everyone's brains', I can think of two different things you could mean:

1) We also wipe everyone's ability to empathize and our protective instinct we have for kids. In this case, we would not suddenly conjure up the idea that kids should not be tortured.

Of course. Poke out our eyes and we wouldn't know that grass has certain physical characteristics that cause it to look green.

2) We wipe everyone's memories and past opinions, but our evolution-given instinct to empathize and protect kids remains. In this case, we would think up the idea that kids should have the right to not be tortured.

Exactly. As long as we have eyes, we will see that the grass really is green. However, we may not quite know what's coming from the grass, what's coming from our eyes, and what's coming from the laws of physics. But the grass really is green -- it has real properties of the grass itself that make it look the color we call green.

For very good reasons, in ordinary cases, we simply say "the grass is green" as if this was a property purely inherent in the grass. We don't say "most grass looks the color we call green to people with ordinary color vision under typical lighting conditions". Why? Because when we say "is green", that's already what we mean -- that it looks green to people with ordinary vision under typical conditions. We should do the same things with rights, and we do. Most people just never realize they're doing that, just as they don't for colors, sounds, and so on.

We save these arguments for philosophy. When someone says "how do you know grass looks green to other people" and "how do you know colors aren't just in your head" and all that. But we all know these arguments are nonsense. It just takes us a bit of head scratching to explain why we were right all along, just as we knew for sure we were. You can try to call my perception of rights into question, but I know how to answer the objections. You cannot prove to me that I do not see what I know I see because I'm actually seeing it.

[toast]

Alright, so we are on the same page. I misinterpreted some of what you were saying at first. Why I pressed the issue so hard is that some people I have been debating with lately are trying to convince me that conscious beings have intrinsic rights that exist outside of human perception - as if grass doesn't just reflect EM waves of a frequency we associate with green, but that the grass has an ethereal "greenness" that it radiates out for us to see. I wanted to know if there was some way to justify such a view of natural rights that didn't use religious or supernatural explanations of consciousness.

[slamcore]

I would like to follow this discussion.  I could just use the notify function, but this is just my fourth post and I need a post count to break out of the newbie ghetto.

[oswami]

So-called "intellectual property" violates real property rights, plain and simple.

This sounds rediculous. How my music (copyrights protected) violates anything??

[smokeydog]

As a libertarian minded person, I am not concerned with IP rights.   My concern is that excessive governmental regulation and abusive power does not infiltrated into the private life of the citizens which government is to protect.  This does not mean no regulations at all.  Government regulation is vital to prevent monopolies.   The power of the US government is killing us all.  We work to support the state but our labor should only be to support ourselves.