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

[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.

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[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.