From: Lee Daniel Crocker (lee@piclab.com)
Date: Mon Jun 17 2002 - 13:36:42 MDT
> (Mike Lorrey <mlorrey@datamann.com>):
> While I am saying that individuals establish ownership by a) posession,
> AND b) improvement via labor. Does a squatter own the land they squat
> on? Under certain circumstances, they do, in fact, do so. They must
> first improve it in some way: build a permanent structure, clear it for
> farming, landscape it for appearance, dig it for mining, etc... and then
> occupy it for some period of time.
We have no dispute here; active possession and improvement doctrine are
perfectly reasonable ways to establish initial ownership of property. But
they are no help in deciding what is ownable and what isn't. There are
things which are quite rationally ownable to which such doctrines cannot
apply--like the right to sue for torts, which can be bought and sold just
like contractual rights (for example, when you buy auto insurance, part of
the contract you sign assigns these rights to your insurer). But there
was never any act of labor that created this property--it exists because
we believe that a person has an inalienable right to life and the physical
safety of his body, and tort suits are an efficient way to enforce that.
> The dogmatism of the anti-IP movement tries to confuse the issue by
> treating IP as a material good rather than a service.
You're the one constantly dancing around the issues, changing your
mind, and using whatever inconsistent and philosophically unsound
arguments end up with the result you like. Make up your mind: are
creative works a service or property? You can't have it both ways.
If they are a service, that's fine; you can charge whatever you like
for your service, but you cannot then prevent me from offering the
same service. To constrain /my/ efforts, you need property law.
If you want to perform a song you wrote, for example, this is a normal
service arrangement. You cover the costs of exclusion (renting a hall,
hiring ticket-takers and security, etc.), and then provide that service
to whoever pays. Now if I want to rent a hall, hire ticker takers, and
perform the same song with my own instruments and my own voice, the
only way you can restrain me is to claim a property right in the song
itself, not the performance. Clearly, the service model doesn't have
the result you want here, so it doesn't hold water.
> The services concept fits far better to IP. For example, if I rent a
> hotel room, I am paying not for ownership of real estate, but for the
> service of a well kept place to sleep. If I then sublet that hotel room
> to six other people, I am committing theft of services, since the rate I
> paid was based on single person occupancy.
> Like IP, the hotel still has its hotel room, I've just 'reproduced' the
> experience for more people. That's fair, ain't it?
You can pretend that dividing square feet is equivalent to multiplying
bits if you like; the rest of passed third grade math. Rent is simply
a contractual right property. Whether or not you can sublet and to how
many is just part of the contract. This is all irrelevant.
> But it doesn't. While this is a common claim by those against IP, that
> isn't what it does at all. I can build any item ever patented, and I can
> play any music or read any work of literature ever copyrighted, for my
> own personal use, without paying a cent to anybody. I can even play a
> tune or read a book to others, or let them use my device, so long as
> nobody profits from it. Libraries wouldn't exist if IP worked the way
> you claim it does.
The reality is somewhat in between your benevolent description and the
fearmongers'. Publication and performance for profit is indeed the
primary exclusive right. I can still give my books to a library, and
sing "Happy Birthday" to my sister. But in an allegedly capitalist free
market society one still has to justify such a restraint of trade; and
there are other restrictions as well--I cannot make derivative works,
for example. Even public commentary is stifled--the CoS uses copyright
law to shut down anyone who uses their scriptures for the purpose of
critiism.
> Ah, but the individual buying the first copy is being provided a service
> (i.e. the previously printed book) in which is specifically printed the
> contract under which the purchase is made. If you don't like copyrights,
> don't buy copyrighted books, or music, etc. If you buy a device that
> says "Patent #########" or "Patent Pending", it is your responsibility
> as the purchaser, buying the device 'as is', to be aware that the
> purchase of said device is conditioned on patent restrictions. If you
> don't like it, don't buy any product that has this printed on it. This
> is why products HAVE to say these things on them for patent rights to be
> binding. This is why books and music have their copyright dates (as well
> as dates of first publishing) on them, so the purchaser can make a
> caveat emptor determination whether the product is purchased under
> copyright restrictions.
Again, your ignorance of the law is showing. I /cannot/, under any
circumstances, build and sell and patented device, and there are no
express or implied contracts to which I've agreed--it's a matter of law,
imposed from the outside. I can't even make an improvement to an
existing device unless it meets a government-mandated standard of
originality. Likewise, authors do not have to register or even claim
copyrights--they exist the moment the work is "fixed in a tangible
medium", whether or not the author claims them, and whether or not
the consumer agrees to them. They are laws, not contracts.
> In digital IP, the cost of production is always less than the additional
> utility gained by a new user, so supply never decreases. Software prices
> are therefore not set by cost/price considerations, but by cost/market
> estimates. If piracy is rampant, the market for software is miniscule,
> and new software doesn't get produced. Ask me why the software industry
> in China sucks.
I am not one of those who uses cost artugments--that's irrelevant to me.
I want to do what's /right/. But I will take up your speculation about
the Chinese software market by sending you two questions in response:
do you contend that the lack of Chinese programmers has nothing to do
with the lack of a good educational system with freedom of speech and
exchange of information? And if lack of IP law makes software profits
impossible, why does Microsoft spend millions, and make millions,
producing a Chinese version of Windows? Obviously they've discovered
a way to make money without IP law; do you still contend that it's not
possible?
I'm sure you'll respond that they would make more with IP. That might
be true. And farmers make more when the government subsidizes them too.
But that's no excuse for subsidies, and I don't buy it as an argument
for IP either.
There /are/ semi-legitimate arguments in favor of IP, and I'd like to see
them explored with some phiolosphical rigor. Because my intellectual
integrity demands it, I'll help out your side of the argument by spelling
out what I think those legitimate arguments are, and let you elucidate
why you might accept one or more of these which I don't:
- The "public goods" argument: Because exclusion is difficult and/or
expensive, shifting the cost of exclusion from the producer to the
government alleviates the "free rider" problem. This is similar to the
argument for national defense, for example: since we can't reasonably
exclude non-payers from the benefits of national defense, we make them
pay by taxation. This assumes that the item in question has some
inherent value; i.e., we are shifting the cost of exclusion to the
government whether or not there's been any demonstration that the work
we're protecting has any value--the government protects the copyrights
of works nobody wants, too. 99% of patents, for example, are pure crap,
but we pay for the administration anyway despite deriving no benefit.
- The "inadequate production" argument: Without the benefit of copyrights
and patents, we wouldn't have sufficient quantity of creative works.
This argument lacks any way of determining what a "sufficient" quantity
is, and also ignores the quality of the work produced. I personally
believe that copyrights and patents don't increase the quantity of creative
work as a whole, they just shift it from small incremental improvements
and derivatives to more speculative heavy-investment forms of creation.
- The "moral rights"/"social contract" argument: We believe that making a
competing business to an author or inventor using his ideas or derivatives
of them is morally wrong, and we agree as a society to enforce that. This
is probably where most people today are, even though that bears no
resemblance to the origins of copyright (which are more along the lines
of "inadequate production").
Oddly, the best arguments in favor of IP are the same kinds of arguments
used to justify socialist and statist policies. I reject them for the
same reasons: freedom works better.
-- Lee Daniel Crocker <lee@piclab.com> <http://www.piclab.com/lee/> "All inventions or works of authorship original to me, herein and past, are placed irrevocably in the public domain, and may be used or modified for any purpose, without permission, attribution, or notification."--LDC
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