From: Mike Lorrey (mlorrey@datamann.com)
Date: Tue Jun 18 2002 - 12:15:43 MDT
092F2F.F6E6F2C6@datamann.com> <3D0CAE2C.3090803@freedomspace.net> <3D0D28D9.CF9B0A8B@datamann.com> <20020617193642.GA14582@piclab.com>
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Lee Daniel Crocker wrote:
>
> 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.
Something can be a service AND a property at the same time, WITHOUT
being a material good. Ownership of labor is the simplest example, since
labor is a service, and laborers certainly own themselves, yet a
man-hour isn't a material good.
>
> 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.
It sure does. How else would you have ever known of the song you wish to
perform unless a) you wrote it yourself, or b) you either bought a
copyrighted recording, or copyrighted sheet music, or a combination
thereof. You were therefore provided a service by the original copyright
holder, purchased under a commercial arrangement and in a form where the
term "Copyright" was present on the product sold? It was your caveat
emptor responsibility to inspect the item for any sale contract
covenants/codocils/clauses, and to either accept the contract or refuse
the sale.
>
> > 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.
Derivative works are allowed within the 'fair use' loopholes. I can
write a satire song (like Wierd Al Yankovic does) using the entire score
of another person's song. I can patent a device which combines two or
more patented devices in a way not envisioned by the inventors of those
other devices.
>
> > 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.
Your ignorance of the law is showing, as well as your lack of reading
comprehension. I never said you can't build AND SELL a patented device.
I said that I can build any device ever patented, for my personal use
and for the non-profit use of family and friends. I can sell any device
with an expired patent.
As for copyrights, there are laws describing what a copyright is, but
that is separate from what I was describing. If I create a song, and
copyright it, and then sell copies of that song *with* the notification
attached or embedded in it that it was copyrighted and in what year and
by whom, then any commercial transaction, i.e. a 'sale', of a copy will
involve that copyright notification forming a part of the sale contract,
and if that is the only written document involved in the transaction,
then it has the weight of a written contract over a verbal one.
>
> > 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?
Chinese law does have IP protections, they are just poorly enforced. For
a company like Microsoft with its capital resources and marketing power,
it can deal with a certain degree of piracy. No mom & pop software firm
in China can deal with the same level of piracy, especially if they are
not Communist Party members. China in fact has a good educational
system, at least in computer sciences, as evidenced by the fact that
most hackers attacking US systems today are chinese.
Thus piracy creates a high barrier to entry in a market that can only be
overcome by those with large capital resources. Ergo, piracy does not
improve competition, it stifles it.
>
> 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.
Farmers would make more when squatters are prevented from occupying
their land (i.e. when environmentalists stopped telling them what they
can and can't do with their land).
>
> 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.
This is a valid argument, although your derision at the end is countered
by the fact that if a patent is crap, then nobody will bother to pirate
it, so it's enforcement costs will be nil as well.
>
> - 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.
This is also valid, though your caveats are answered by the historical
record, where cascade effects of technological development have only
occured where there have been statutory IP protections.
>
> - 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").
IP is art, whether it is a gear design or an oil painting or a building
blueprint. It has always been a moral principle that someone who copies
another persons original works of art is nothing but a cheap
counterfieter, lacking in imagination, inventiveness, trustworthiness
and respectability. I am not surprised that these adjectives are so
easily applied to the average napster user.
>
> 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.
While I agree with you that in a perfect world, freedom would work
better, events of the last year have given me a better appreciation of
Vinge's view of radical anarcho-capitalism as illustrated in his story
"Conquest by Default". An ungoverned society presented with an organized
terrorist threat like Al Qaeda would quickly devolve to the sort of
violent desperatism found in Vinge's Mikin society. This is the purpose
of terrorism, to erode liberty with fear. The only solution is
ubiquitously armed individuals and permanent distrust of others, with
violent supression of offenders.
Dissolution of IP by pirates and counterfieters propagandizing against
IP is as much an erosion of liberty on the economic front as other
subversive organizations and individuals try to erode liberty by sowing
mistrust, fear, uncertainty, and doubt in individual political freedoms
like speech, association, bearing arms, travel, etc.
Just because 'most people' would benefit from eliminating IP doesn't
make it right, it only illustrates that 'most people' are unoriginal,
unimaginative, uninventive hangers on. The purpose of natural law is to
exclude some liberties from public confiscation based on utilitarian,
security, or other arguments. IP is no different than speech, bearing
arms, or other individual rights that IMHO should be exclusive of
confiscation by popular vote.
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