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

[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.

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[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.