Beemer must be next... (BMW, Trademarks, and the letter "M")
Thanks, Trade*ark law. Now, thanks to a recent court decision, auto *anufacturer B*W now owns the rights to the letter * (the one after L and before N--I'* afraid to use it since B*W now owns it). Even sillier than Apple's claim to own "podcast" or even "pod". Ah, *e. Thanks to To* Bernhardt)
Comments (132)
*anuel Lora
*any *en *ust *isunderstand *arket *anipulations!
Published: March 20, 2007 8:24 AM
Bill
I guess I should shy away from going to Canada as the W in William is obviously owned by BMW also. What about the C in Canada? What about that Maple Leaf. Is the it aple (different from apple in the US) Leaf?
This tradmarking/copyrighting/patenting is getting out of control.
What is truely amazing is that buyers of autos costing over $35K US can not discern the M35 from the M5? How about the modifier BMW or Infinity? I guess people are just stupid.
Published: March 20, 2007 8:53 AM
Sasha Radeta
If so many "libertarians" misinterpret the origin and purpose of trademark and copyright (no offense to Dr. Kinsella), what do you expect from statists in courts? The only purpose of trademark is to exclusively identify the commercial source or origin of products or services. Trademark fraud consists in signature stealing, therefore damaging the company by imposing on it responsibility for potentially bad design, material flaws, etc…
Acura's signature "M" (no matter how nonsensical) does not look anything like BMW's oval logo and this cannot yield any fraud, even with the most retarded customers. This was a bad decision - but I'm glad we finally talk about the actual court's decision, rather than random IP lawsuits (the usual practice here).
Published: March 20, 2007 8:57 AM
Sasha Radeta
Infinity, not Acura, pardon. Mea culpa.
William, don't wory. This decision pertains only to signatures on cars - but you are correct in stating that this was a bad decision. This, however, has nothing to do with copyrights.
Published: March 20, 2007 9:03 AM
Stephan Kinsella
Sasha:
None taken. In fact it is the confused "libertarian" advocates of various forms of "contractual IP" who confuse and conflate various forms of IP, e.g. by subsuming patents (inventions) under the idea of copyright.
Oh, statutes have many "purposes"--you can't just trust what the proselytizers say.
Signature stealing! So now, there is a property right in a pattern, eh? Wow, back to copyright it seems.
IMO the only legitimate basis for trademark rights is based on the idea that if you defraud the customer as to a characteristic of the good sold, the customer has a cause of action for fraud or contract breach--not the trademark holder himself, however.
Even if the M looked exactly like BMW's oval logo, how would it really be fraud? It is silly to think someone shelling out $50k or more for a car from Infiniti thinks it's a BMW just b/c it has a similar M logo or model number. That's ridiculous. There is no fraud. THere could only be fraud if Infiniti made cars that looked just like BMW cars, that were stamped with BMW, and that were sold to the customer as being genuine BMWs. But let's take an extreme case: Infiniti makes knock-off BMWs that look exactly like BMWs, but it sells it to customers for 1/3 the price of a regular BMW. The customer knows it's a knock-off--that's why he's getting such a good deal (just like when people buy fake Luis Vuitton purses for $10). Now, in this case, there is no fraud, even if the car looks identical. Who is being defrauded? NOt the customer. At most, it is the customer who is doing something dishonest by trying to impress the ladies by making them think he can afford a real BMW--but that is not legally enforceable fraud.
Posted by Sasha Radeta at March 20, 2007 8:57 AM
Infinity, not Acura, pardon. Mea culpa.
William, don't wory. This decision pertains only to signatures on cars - but you are correct in stating that this was a bad decision. This, however, has nothing to do with copyrights.
Published: March 20, 2007 10:32 AM
John Delano
Meh
I think Infinitis are better than BMWs, Stephan. Look at the quality and reliability reports.
Published: March 20, 2007 10:40 AM
Sasha Radeta
Dr Kinsella,
By "the confused "libertarian" advocates of various forms of "contractual IP" who confuse and conflate various forms of IP" -- you certainly don’t think of Rothbard, who is light-years ahead of anti-IP crowd when it comes to applications of private property rights. He defended the ownership rights in their entirety (full control of services that can be derived from a good)... On the other hand, some "libertarians" advocate common ownership when it comes to inventions. That's communism last time I checked.
As far as signature forging goes, that's what trademark infringement is all about. In such cases - not only do defrauded customers suffer an injury (and thy indeed have a cause of legal action - and that would have been the focus of trademark issue in a completely privatized world) - but it is also the trademark holder who suffers the injury as the result of that fraud, in the form of lost earnings (fraud aggravated to tort, because these intentional acts are reasonably foreseeable to cause harm to an trademark holder, and that do so).
When it comes the case of BMW - like I said, they did not have case with their "M" logo. You can't make a case that someone forged your signature, if you sign with an "X." As far as Dr. Kinsella's "extreme case" goes, it is ludicrous. The law cannot assume that customer knows that he/she is getting a fake copy - if a product itself is advertised and signed as a genuine BMW. Dr. Kinsella should know that fake Luis Vuitton purses are also selling for the amounts way higher than $10 and people often discover the fraud once the product falls apart after a normal use.
Published: March 20, 2007 11:04 AM
iceberg
Sascha,
Why did Dancing *an go to the trouble using *ises's definition of ownership, if *rs. S*ith wanted a Luis Vuitton handbag, because the pattern is non-obvious and Rothbard's exa*ple of *r. Brown's copyrighted *ousetrap is defined by all the possible uses that can be derived from a forged B*W signature.
There, I think I just su**ed up your entire argu*ent.
Published: March 20, 2007 11:27 AM
Sasha Radeta
Iceberg,
You last posting is completely incoherent. I hope that's not a side-effect of our last discussion in which you didn't do too well.
Trademark issues are not directly related to copyright (the former are issues of ownership rights: to fully control all services that can be derived from your property, allowing you to contractually demand damages for certain uses, or to sue a third party for an unauthorized use / trespass). There is no need to mix your copyright confusion into all this.
PS
You don't have to substitute "m" with a "*," because the court cannot find you defrauding any customers or causing injury to anyone. On the other hand, maybe you should continue to do so, because your postings will be even more difficult to read : )
Published: March 20, 2007 11:47 AM
Dan Coleman
*y apologies to the B*W corporation, for *y having assu*ed full ownership of B*W's property for so long. Let *e go calculate the da*ages are, and get back to the* with *y *onetary appease*ent.
Published: March 20, 2007 11:56 AM
Stephan Kinsella
Sasha:
Yes, he was confused. In his small page-long discussion of a highly technical area of law that he was not an expert in, he made a slight mistake. Leave him alone. He's done enough.
Actually, there is no ownership of inventions at all, because they are not property. Property consists of scarce (rivalrous) resources. Just as it is not communistic to say that no one owns time, or memories, or history, it is not communistic to say that no one owns patterns of information, recipes, ideas. By saying no one owns it, we do not say it is commonly owned. It is not owned at all, becasue it is not a type of thing subject to ownership in the first place.
If you could show that an "invention" was a type of property, then the proper owner would be its creator, perhaps, or discoverer, or first user. If it were ownable, we would need to assign some ownership rule and it would not be the communistic one. But we only reach this question for ownable things--property. Inventions are not property. This was Rothbard's error, and it is yours.
Nonsense. The trademark holder has no right to have a customer buy things from him. He has no claim on this.
I am not saying the law should assume this. I am assuming this is indeed the case, and under such a case, there is no fraud.
If Infiniti did actually deceive the actual customer as to the nature of the car, that customer is in fact defrauded.
In such a case there coudl be fraud. My personal experience is that this is almost never the case. Anyone who pays full price for a Luis Vuitton purse from anywhere but a reputable and authorized dealer is a moron. In fact, in my view, almost every purchase of a knock-off purse is done with full knowledge of the buyer. They buy the knockoffs on purpose, for the precise reason that they can save money.
This is true even of more expensive knockoffs that cost more than a trivial amount, but still an amount that is heavily discounted from the normal price. I defy you to provide a common, real-world example of some customer paying full price for a fake designer purse from a non-authorized merchant (e.g., a LV store or a large department store) where the customer does not have grounds for knowing what is really going on.
Published: March 20, 2007 12:00 PM
Sasha Radeta
OK, here is another one who doesn't even get the case, but suffers from past traumas, which I unintentionally caused.
Dan, current system is not based on free-market contractual copyright. In a completely privatized system, if you assumed full ownership of a BMW and if you really replicated their product without their permission, it will not be up to you to calculate the amount you owe. Your contract would definitely specify such amount (like the value of replicated good, plus punitive damages) - and in the case of third party's unauthorized use it would be up to courts to decide.
PS
I don't understand why these jokers are trying to put copyright issues on this trademark bandwagon. Just because some court reached a bad decision in a completely unrelated issue, does not mean that you can reverse your miserable failure in our past copyright discussions. Give it up and allow your wounds to heal.
Published: March 20, 2007 12:09 PM
Dan Coleman
*y *istake. Please accept *y apologies, Sascha, *y fear is that I'* *isunderstanding you again. I suppose that *y next *ove is to contact B*W to *ake sure they re*e*ber to count up *y debt for trespasses on their full ownership of services derivable fro* their auto*obiles. I'll gladly pay the fee as a tribute to property rights -- how *uch are the trade secrets worth, again?
I hereby pro*ise B*W that *y *isuse of their property won't happen again, at least, not on my watc---d'oh!
Published: March 20, 2007 12:22 PM
Person
Stephan_Kinsella: Do you really think it's a valid argument (as you make every other day) to point to a poor application of some type of property law and cite that as evidence of that type of property's illegitimacy/ immorality/ unjustifiability/ whatever-magic-word-I'm-supposed-too-use-when-talking-to-you-about-this?
As I've pointed out before, there is no end to non-sensical legal decisions involving use of physical property. Do those take away from the validity of physical property rights? If not, what makes this decision special?
If you're just rabblerousing, fine, but don't pretend this is an actual argument.
And please don't parse my posts into meaninglessness.
Published: March 20, 2007 12:22 PM
Sasha Radeta
Dr. Kinsella,
Yes, Rothbard made a slight mistake - but he correctly understood how ownership rights apply to copyright. He naturally opposed your notion of common ownership (communism) when it comes to people's work of authorship. The fact that you don't recognize some invention (like piece of machinery) as an ownable good, only illustrates your left extremism. You do own your physical writings and you can contractually restrict the way in which someone may used them - and you can also prove if a third party used them without any owner's permission (trespass).
You say: "Nonsense. The trademark holder has no right to have a customer buy things from him. He has no claim on this."
Trademark holder suffered a tort of financial injury as the result of fraud. I didn't say he has a right to have a customer buy things from him. I only state that the defendant fraud action is illegal, and that it would legally cost him a lot of money to produce things under a BMW signature (that's what their subsidiaries do)
As far as your Luis Vuitton example goes, you may think that a person who does not buy a bag from authorized dealer is a moron - but law does not (and should not) care about your personal opinion. A fraud is a fraud, regardless of the IQ of a defrauded victim.
Published: March 20, 2007 12:23 PM
Sasha Radeta
Dan,
People own everything only in a hypothetical communism, which would lead to human extinction as Hoppe proved brilliantly. I know you can't deal with that, but full ownership of some valuable means of production would cost a lot of money in a pure capitalism (you would not get BMW replication rights for 80K, which is how much personal use approximately costs). That's why so many of you end up disappointed once they realize this, and they end-up becoming communists.
Published: March 20, 2007 12:29 PM
Sasha Radeta
Actually, fraudulent sellers adjust their tactics according to the victim's IQs. In Eastern Europe you even have a reputable stores that sell fake merchandise mixed in with some real one -- or they even establish a fake authorization notices (like a fake "Nike Factory Outlets")... Those are clearly acts of fraud, which produce injuries (tort) on different levels.
Published: March 20, 2007 12:51 PM
Dan Cole*a
Well, Sascha, you're pretty far off the *ark in your esti*ation of *e. All people owning everything? What a strange world you *ust be i*agining -- it certainly sounds nothing like what I've ever stated.
I'* now done interacting with you in this thread, since you obviously can't spot a joke or respond to people's posts in a civil *anner. It's the sa*e as before; it is si*ply fruitless to talk to you.
Since you see* to feel better about yourself when you can clai* victory once so*eone tires of your co*pany, go ahead and chalk this up as *y resignation fro* the argu*ent and ad*ission that you're right and I'* wrong. And so*ething about *e having a learning disability, if I recall correctly.
Published: March 20, 2007 1:00 PM
Sasha Radeta
Dan,
I don't feel better about myself when someone like you looses his argument. I just feel bad for you.
You seemed surprised that you would not be able to afford a full-ownership of a valuable mean of production, like a full ownership of a BMW. That's why I explained that you can't own everything.
OK, continue to joke. I didn't insult you with anything this time.
Published: March 20, 2007 1:10 PM
Stephan Kinsella
Sasha:
It is not communism since I am not saying property rights in ideas should be held communally. I am saying ideas are not property. That is not communistic. Every private property advocate has a view of what types of things are, and are not, property. It is well within the bounds of traditional private property advocacy to maintain that property includes only scarce resources (and not ideas).
"Invention" does not refer to a piece of tangible property. It refers to the idea. A given physical device based on an invention can certainly be owned.
He is not the one defrauded. He has no claim. You seem to be under the mistaken view that anyone who is "harmed" financially due to an act of crime or tort committed against an unrelated third party has some cause of action against the aggressor/tortfeasor. This is ridiculous. by this reasoning every innocent person in the world has a claim against every aggressor. If I accidentally crash into your car when you are on the way to buy a new one from a car dealer, now I owe you damages to repair your car for my negligence--and the car dealer can also sue me for the sale he loses! ha! How absurd.
No; because you don't make things explicit or dont' realize what is implicit in your comments. Your statement implicitly rests on this notion.
No, you said that if Infiniti defrauded a customer, then BMW also has a cause of action against Infiniti, because it was harmed by the act of fraud. The problem is you don't seem to realize BMW has no cause of action unless it is the victim of some tort--and it was not the one defrauded. The customer was.
The law quite sensibly takes context into account. It is well known that knockoffs are often sold at a steep discount from the normal price for a genuine item, and in sleazy circumstances such as a guy selling you a $10 Rolex out of the back of his truck, and so forth.
That is not my poitn. My point is that in most real-world cases, it is widely known that the buyers know they are getting a knockoff, so there is no fraud there. Wouldn't you agree that if the buyer knows he's buying a fake gucci or BMW then he is not defrauded?
Hoppe is also anti-IP b/c he defines property as scarce resources. His view that there are no property rights in ideas/inventions etc.--identical to mine--is not a view of "communism" in ideas. He does not think ideas should be commonly owned, but rather that the concept of ownership does not apply to such non-scarce resources.
Here you seem to mistake economic value with rivalrousness or scarcity. Thus anything "of value" should be ownable property.
Then this would be a real case of fraud, and the buyers would have an action against the seller. But it still would not give any cause of action to Gucci or Nike or whatever--they are not the ones being defrauded.
Published: March 20, 2007 1:15 PM
Sione Vatu
Ah, so that's what B*W has been spending its *oney on.
I wondered what was up when so*e of their new *odels got styled uglier and uglier- each looking *ore defor*ed than the last. B*W cars, once the epito*e of good taste and quality, ended up looking like those cripple carriers that the Brit govt pro*oted years ago.
Everyone bla*ed the new chief stylist, Chris Bangle (co**only referred to as "Bungle"). But NO! It's not been his fault after all. B*W *anage*ent have been steering their co*pany's attentions and resources towards the * IP nonsense and fogotten all about funding and *anaging the styling studio. The hand is off the tiller. The eye is off the ga*e.
Bad taste! Bad for*!
Well I'* not going to buy one. They look like *ongrels now.
Screw *!
Talofa!
Sione
Published: March 20, 2007 1:19 PM
Stephan Kinsella
Person:
Person (or should I say.... hey, can I post your email address here....?), you're right, we should not mention such things! It's unfair to highlight the state's failure and injustice.
Published: March 20, 2007 1:22 PM
Person
Stephan_Kinsella: This case is no more an example of state injustice that the ruling against pilots flying unauthorized over farms.
Published: March 20, 2007 1:44 PM
Joe Cesarone
This ruling reminds me of the old Steve Martin "Hostage" routine, where he states the 3 demands that he would make as a hostage-taker:
Martin laughed at "getaway car", as if that was the most absurd of the demands - now that BMW has used the state apparatus to appropriate the rights to the letter "M", that joke has lost its irony.
Published: March 20, 2007 3:01 PM
Sasha Radeta
Sione,
It's not funny when regular contributors to this blog are joking about their denial of ownership rights (while using Dr. Kinsella's joke with a substituted "m"). What to expect from general public, if people here subscribe to communist ideas when it comes to control of your own original goods.
----
Dr Kinsella, you said:
"It is not communism since I am not saying property rights in ideas should be held communally."
It is communism when you say that I don't have right to contractually regulate the use of my own physical invention through contracts - or to have a tort case in case of unauthorized use and replication, which causes financial injuries (there are different meanings of word "invention," but that makes no difference). If you advocate free communal violation of copyright contracts and free unauthorized use of someone else's property - that's communism. Maybe I'm wrong and you still question the possibility of copyright contracts and tort cases when it comes to third party use.
Dr. Kinsella said:
"by this reasoning every innocent person in the world has a claim against every aggressor. If I accidentally crash into your car when you are on the way to buy a new one from a car dealer, now I owe you damages to repair your car for my negligence--and the car dealer can also sue me for the sale he loses! ha! How absurd.
Wrong! I did not talk about "unrelated third party". I am talking about the intentional (foreseeable) injuries to another party, during the course of illegal actions. Like if I steal a car from your car-dealership and hit your customer during a getaway, I would not only be liable only to one person. Or even better: imagine if we were managers of competing boxers. If I injure your client with my car and I disable him for boxing, you would both have your claims against me.
...
I say that any false advertisement that causes financial injury (tort) is a fraud - and that person's abilities should also be taken into consideration (it may be easier to defraud a less intelligent person, but that does not excuse it). I agree that often you can't argue that a person didn't know it was getting a knock-off deal on Luis Vuitton and that there was an intention of fraud on sellers’ part.
When it comes to unauthorized replications of more complex items like Rolexes, those situations become violations of copyright contracts - or simply a trespass, or unauthorized use (if no contract exists between seller and a buyer). In those cases, sellers would indeed have their cases against copycat.
PS
Dr Kinsella, you said that Hoppe is anti-IP, because he only believes in ownership of scarce resources.
You failed to realize that I am also against the use of term "intellectual property" (IP) -- because I also believe that only physical items can be owned (and I understand what is economic definition of scarcity and how it applies to services that can be derived from goods - which is something you struggled with)...
...BUT, I can never be against copyright, because it is not based on ownership over immaterial ideas - but on real ownership over physical property. Once again, if you own a piece of a unique physical property you will be able to contractually restrict its replication, or to prove whether someone used it without your authorization.
BY THE WAY, did Hoppe ever say anything against copyright? I only noticed "copyright" notices on his books, but not his statements about it - maybe I missed it. He completely accepted and elaborated Rothbard's property theory - but as you this led Rothbard to a logical conclusion that copyrights are compatible with anarcho-capitalism.
Published: March 20, 2007 3:15 PM
Stephan Kinsella
Sasha:
They don't; this is a lie.
It is communism when you say that I don't have right to contractually regulate the use of my own physical invention through contracts
But you do.
I don't think you know what you are talking about. You can't just throw the words "tort case" and "financial damage" around all willy niilly.
Well, neither a contract nor an idea (original expression or inventive concept) is property at all. So if we are talking about owned scarce resources: I agree, that no one in the world except the owner has a right to use it, unless the owner consents. But since this applies only to owned scarce resources, and not contracts themselves, this reasoning cannot ensnare third parteis to a contract. As for violation of copyright: only the party to the contract can violate it: no third party can. So again, by contrat theory, no way to get third parties.
I think you are simply confused and are not speaking clearly.
Yes, you did: you implied that Gucci, Luis Vuitton, BMW, has a cause of action against a competitor who defrauds one of its own customers. Gucci et al. are third parties with respect to the sales-fraud relationship between competitor and customer.
There is nothing wrong with foreseeably "injuring" others at all. Libertarianism opposes aggresion, not "injury" or "damage" or "harm." So long as you do not employ aggression to do it, you are perfectly free to "harm" others. If I tear down my rose garden that you like looking at, you are "harmed," but have no right not to be.
Likewise, if a vandal tears down my rose garden I have a right to sue him for damages--NOT you. Even if the vandal destroyed my rose garden for the sole purpose to irk ("harm", "injure") YOU, you still have no cause of action against him: I do.
But this is because you actually hit the customer and aggressed against him. You are liable to the customer for such damage whether you are using the dealer's car or your own. So you are just throwing a red herring. Are you dishonest or a dimwit?
Wrong. The manager of a boxer would not (and should not) have a claim against someone who injures the boxer. The boxer has a claim. Where do you get this stuff from? The only analogous case I can think of is where if a husband or wife is injured, that person can sue the tortfeasor, and in some cases (I think) the other spouse can also collect for damage to marital relations or "consortium" or something. But this is based on the unique concept that married people are sort of the same unit. It is unique (and I'm not sure it's libertarian anyway).
Maybe; but it's a fraud committed on the defrauded customer only. No one else has a claim.
AHA HAHAHAHAHAHA. Jesus, you are a broken record. Are you quite aware that it's possible to just go create somethind, and call it a rolex, without having to physically hold some template model? that is, you can make a knockoff without ever impermissibly "using" anyone else's property.
I said he is IP b/c he agrees w/ me and I with him, on my entire Against IP paper.
Why, does it violate Galambos's rights to do so?
the contractual restriction restricts parties to the contract, not third parties. It is not necessary for a third party to handle or "use" the owned item in order to duplicate it.
Yes, to me. He endorses my paper.
So? There are copyright notices on my publications too.
You may be unaware but the law automatically grants copyright to someone the instant they tangibly fix an original work of authorship in a medium of expression. It requires no registration with the copyright office. It requires no copyright notice. The copyright notice only states a preexisting fact. Moreoever, often the publisher requires it not the author. Finally, even if one only acquired copyright by a positive act of stamping it, and even if this were hypocritical, it does not mean one's anti-IP views are incorrect. In any event it is not hypocritical. So you remark here is disingenuous.
Published: March 20, 2007 3:45 PM
Person
Stephan_Kinsella: So? There are copyright notices on my publications too. You may be unaware but the law automatically grants copyright to someone the instant they tangibly fix an original work of authorship in a medium of expression. It requires no registration with the copyright office. It requires no copyright notice. The copyright notice only states a preexisting fact.
So? If you really believe in the invalidity of IP, you should add the few extra words needed to GPL or "creative commons" or "public domain" the work. Since you're an IP attorney, I'm sure you're already familiar with this.
I think you'd agree that the automatic nature of the rights is no excuse. If the government announced that it would execute anyone you touched unless you declared your skin "non-execute-touch-compatible", I think you'd agree it would be pretty phony to call that an excessive burden.
Moreoever, often the publisher requires it not the author.
But I thought, if aggression is wrong, it's wrong to delegate it as well?
Finally, even if one only acquired copyright by a positive act of stamping it, and even if this were hypocritical, it does not mean one's anti-IP views are incorrect. In any event it is not hypocritical. So you remark here is disingenuous.
Oh, yes, it is hypocritical. And it means you can't live by your own beliefs.
Published: March 20, 2007 3:56 PM
st4rbux
I own an M3, and I understand exactly why BMW took this action.
When Infiniti launched the new M35, their TV advertisements simply described it as "M by Infinity". The car looked like their G-series sedan/coupe (competitor to BMW 3-series), and the M sounded like a high-performance modification -- exactly what the Motorsport division (M Division: "M Power by BMW" is their slogan, I believe) does for BMW. I actually commented to my wife (who could care less) that I was shocked -SHOCKED- that Infiniti would attempt to do this. You can imagine her eye-roll.
It took about 2 minutes for me to get on the Internet and discover that their M-series is a larger car, a competitor to BMW's 5-series, and that it existed in previous generations, and was no threat to BMW. And as long as they stuck to two-digit models (M35, M45) I imagine BMW would leave them alone.
But the article says that they had a model (or G35 model derivative) called the M6. Now BMW's M6 is probably their top-performing production car, a 500HP schnitzel-rocket. If any auto buyer confused the G35-M6 for a real M6, well, buyer beware and that fool should be parted from his money.
But BMW still had to take action -- it's my understanding that if they don't protect their trademarks, competitors can continue to whittle away at them. If they don't protect "M6" now, Infiniti could come out with an M3 and BMW might not have any legal protection. That's why Xerox and Kleenex and Rollerblade have worked so hard to protect their trademarks in the past.
As for Stephan - this had nothing to do with BMW's roundel (it's not oval). See http://en.wikipedia.org/wiki/BMW_M
Published: March 20, 2007 4:20 PM
Francisco Torres
Stephan Kinsella:
My point is that in most real-world cases, it is widely known that the buyers know they are getting a knockoff, so there is no fraud there. Wouldn't you agree that if the buyer knows he's buying a fake gucci or BMW then he is not defrauded?
I can vouch for this - my wife buys replicas of brand-name handbags. She KNOWS they are replicas, she knows they are not manufactured by the same company. She, of course, is NOT defrauded.
If the point of the IP advocates is that the company that "owns" the marque is being injured, then you would be put to task to explain how the UNrelated actions of a third party (the replica manufacturer) can injure the brand-name handbag manufacturer when it is the CONSUMER that makes the decision to buy.
Published: March 20, 2007 4:24 PM
Francisco Torres
So? If you really believe in the invalidity of IP, you should add the few extra words needed to GPL or "creative commons" or "public domain" the work.
There is no need to do that. IP law is invalid by its own nature, so stating the obvious is not required. This is why calling Mr. Kinsella "hypocritical" for not stating this fact is incorrect . . . AND disingenuous.
Published: March 20, 2007 4:26 PM
Francisco Torres
st4rbux, it is one thing to protect your well known trademark, another to try to pass a letter of the alphabet as your property.
Published: March 20, 2007 4:29 PM
Sasha Radeta
Francisco,
We can’t model the law based on your wife. In past, like most Europeans, I was at least once a victim of trademark fraud. I also specifically purchased cheap items which resemble modern designer styles (this is much more stylish than wearing a fake replication)… anyways…
BMW did not pass the letter of alphabet as their property. I still think that the court reached a wrong decision -- although I think that Infinity’s attempt and lack of originality is pathetic.
-----
st4rbux,
I mentioned oval logo… not Dr. Kinsella. I still think that it was unlikely that any buyer will be defrauded by the use of “M” symbol into thinking they are getting a BMW -- and that should be the purpose of trademark protection.
Published: March 20, 2007 4:48 PM
Francisco Torres
We can't model the law based on your wife. In past, like most Europeans, I was at least once a victim of trademark fraud.
You cannot have the Law protect you from your own stupidity if you only succumb to it a few times. A law that "protects" you from seemingly fraudulent marques would actually give you a false sense of security, making you a sweet target for even bolder acts of fraud. My wife knows what she is buying precisely BECAUSE she does not take into account such laws - she uses her wits, making her a more careful buyer.
Besides, not one said "let us model the law after my wife."
Published: March 20, 2007 5:04 PM
Sasha Radeta
Besides, not one said "let us model the law after my wife."
It awfully sounds like that, since you keep mentioning her -- and I already told you how consumers can be defrauded with trademark violations. I disagree with this "M" decision, but that doesn't mean we should advocate the legalization of any trademark violations (fraud) and ignore financial injuries they cause.
Published: March 20, 2007 5:47 PM
Brent
Sasha and Person,
Please present (*your idea of*) a coherent real world example of how copyrights, trademarks, and patents would be used in your ideal society.
Published: March 20, 2007 5:49 PM
Person
Brent
Please present (*your idea of*) a coherent real world example of how property rights would be used in your ideal society.
Published: March 20, 2007 6:47 PM
st4rbux
Fransico, did you read the article? They didn't claim the letter M wherever it is found in art and literature:
"for the use of the letter M and the descriptor M6, as trademarks for automobiles, parts and accessories, ..."
Should Oprah not have some right to the exclusive use of "O" for magazines? If one letter is bad, two must be worse -- should "GQ" be protected? I suppose a thousand magazines named "I.D." should flourish?
I don't know why you're using the lack of fraud as some defense -- trademark law may have started with fraud protection in mind (I'm not even sure that's true), but it's clearly expanded beyond that to protecting a brand. And I don't think that's a bad thing, as companies put significant resources into building and defining brands. Again, reference Kleenex, Xerox, Rollerblade; who fought to keep their names from becoming common language replacements for tissue, photocopies, and inline skating.
I'm assuming this suit was brought because BMW took the effort to trademark "M" as it relates to cars, and if it's on the books with the trademark office then Infiniti should have been more careful before they got creative with their use of the letter.
Besides, BMW knockoffs are called Audis. As long as buyers know they're knockoffs, it's not fraud. :P
Published: March 20, 2007 7:19 PM
Mathieu Bédard
Nestlé owns "bonheur" (happiness) in France, thought it never actively defended it's 'property' over it. I don't think there can be any better example :)..
Published: March 20, 2007 7:47 PM
Brent
Person,
Thanks for repeating the question. You and Sasha brag about how copyrights, patents, and trademarks *really* would work within a true system of private property rights. You repeat ad nauseam that it is just the state that constantly allows the abuse of them. I patiently wait for an example. It ought to be easy for you to show how simply they mesh with (dare I say) real property rights.
Published: March 20, 2007 9:32 PM
Sasha Radeta
Going back to last Dr. Kinsella's last posting,
He wasted so much time writing about current copyright practices (that even a child could find, using Google), without thinking what actually said: Dr. Hoppe did not say anything in his works against copyright (once again, the only thing on his works mentioning "copyright are those copyright notices - and I that's all I said). That does not mean that he didn't say anything privately - but that's not his work and that's not going to stay as his position (unlike Rothbard's open support for copyright).
I am glad that you cleared Hoppe's position for us, but anti-copyright position does not necessarily comes from Rothbard's theory of private property rights, to which he subscribes.
Dr. Kinsella said :
"I agree, that no one in the world except the owner has a right to use it, unless the owner consents. But since this applies only to owned scarce resources, and not contracts themselves, this reasoning cannot ensnare third parteis to a contract. As for violation of copyright: only the party to the contract can violate it: no third party can. So again, by contrat theory, no way to get third parties."
Once again, you forget the whole point: third parties are not responsible for contract violations, but for issue of trespass (unauthorized use) and tort (resulting injury). We both now agree that copyright contract are enforceable when it comes to two parties (it was difficult to even get you to admit this) - but you still struggle with a fact that a third party cannot simply "borrow" my property from someone else and than use it without my permission in order to replicate it.
In regards to this issue, Dr. Kinsella was screaming:
"AHA HAHAHAHAHAHA. Jesus, you are a broken record. Are you quite aware that it's possible to just go create somethind, and call it a rolex, without having to physically hold some template model? that is, you can make a knockoff without ever impermissibly "using" anyone else's property.
When we talked about Rolexes, I did not refer to trademark violations (simple fraud) when it comes to "knock-offs." I was referring to issues of Rolex replicas, which can sell for high prices at jewleries: "When it comes to unauthorized replications of more complex items like Rolexes, those situations become violations of copyright contracts - or simply a trespass, or unauthorized use (if no contract exists between seller and a buyer). In those cases, sellers would indeed have their cases against copycat."
One day you will hopefully understand that in addition to contractual restrictions, the owner has a right to demand damages from third parties that commit a trespass (use without owner's authorization, which would legally cost them a lot of money).
Finally Dr.Kinsella states:
"Libertarianism opposes aggresion, not "injury" or "damage" or "harm... Even if the vandal destroyed my rose garden for the sole purpose to irk ("harm", "injure") YOU, you still have no cause of action against him: I do."
First of all, aggression is not the only libertarian prerequisite of tort, since there can also be an injury caused by fraud. You are also forgetting that in cases of trademark infringement, the violator has a purpose to harm both trademark holder and his customers, with an illegal act of fraud. And he does so. So it can never be analogous to your silly rose garden example, since you admit that a trademark holder suffers an injury as a result of fraud - and this injury was foreseeable. Trademark violation is an act of fraud directed against more than one side. It can be analogous to a situation in which one person prevents professional athletes from appearing at a game - knowing that it will cause the play-off elimination of this team (significant financial injury). According to Stephan, the team has no case against this person, but this seams like a bogus.
Anyway, at least you must admit that trademark has its purpose to prevent fraud when it comes to situations in which a customer does not know that he is buying a "knock-off." That's good enough from you.
Published: March 20, 2007 9:59 PM
Stephan Kinsella
Sasha:
If someone emails me Hey Jude and I put this pattern of bits onto my MP3 player, I never use the buyer's CD or property. So, no trespass, no tort. mm'kay?
And I hereby retrac it. So, unfortunately, back to square one for you. (Play Debbie Downer's theme, "womp womp wompp...")
A third party does not need to ever use the property of someone else to obtain information. For example you play the new Madonna song on loudspeakers on your front lawn. I record it from my house, or just hear it and remember it. Later, I perform it, or sell copies of my recording. I never did use your property. Or: you disassemble the "copyrighted" mousetrap on your lawn, in full view of your neighbors. I take photos of it from my house, and studying them, learn the unique inner workings of this innovative mousetrap. I then start up a company competing w/ them selling similar mouestraps. Again, no violation.
But not all third parties who obtain a pattern or information ever have to commit trespass to do it.
aS a result of fraud to another. The non-defrauded person has no cause of action whatsoever against the defrauder. Only his victim does.
And according to--hello!--the law. Are you now proposing to re-write the law with Sasha's legal code! Wow, I can't wait to see it!
No, it's still not legitimate, becaues it gives the right to sue to the trademark holder, instad of the customer. The customer has a fraud claim. That's all there is or should be.
Published: March 20, 2007 10:21 PM
Sasha Radeta
Brent,
According to Mises, ownership means "full control of the services that can be derived from a good."
If you have such control (if you are a true owner) - then you have a sovereign right to sell different kinds of uses (services) for different prices. This means that two of us could make a voluntary, free-market contract, which would state that a non-commercial use of my book will cost you $20, but the commercial use of my book - like replication - will cost you much more (those larger amounts that publishers normally pay for their rights). Do you agree so far?
Dr. Kinsella keeps asking the same question: what about third parties that replicate your book when thet borrow it from your customer... you can't force your contract on some party that never signed it.
- I keep answering: when someone uses my property without my authorization - that is a trespass. If this person decides to assume full ownership rights of my book, by deriving expensive services from it (replicating it and republishing it), he is aggravating his trespass to tort of financial injury. He owes me money for (normally) expensive use of my property, plus punitive damages for his intentional, unlawful acts.
As far as patents goes, I am against them insofar as they go beyond copyright. In other words, patents should not prevent independent discoveries and grant monopolies to someone, just because they managed to assemble their new device before someone else, who was about to do it completely independently.
When it comes to trademarks, you can see my position here: trademark violations are like any other signature forging. Those are frauds that can lead to injuries of different parties. You can argue that another "O" magazine would create customer's confusion and it would be a fraud. Arguably, this would not be the case in BMW v. Infinity case, since other logos clearly state the maker of each vehicle and it would be reasonable to assume that customer knows the difference.
Published: March 20, 2007 10:31 PM
Stephan Kinsella
Sasha:
Now hold still you slippery little bugger! You keep evading the crucial issue: of whether the third party has to use property--commit trespass--to acquire the info. Do you acknowledge that he doesn't? And that if he doesn't, he owes nothing?
Is "property" here the idea, or an actual scarce resource that embodies or is patterned on the idea?
Well that clears it up! Every IP attorney in the world would laugh their heads off at that--you are against patents to the extent they "go beyond copyright". Hahahahah. That's like saying you are against, say, censorship laws to the extent they go beyond the rule agains perpetuities or adoption law.
Copyright covers original ways of expressing ideas. Patents cover inventive ideas themselves. Whether there are independent inventor exceptions or not is not the big difference. It is in their subject matter. Only someone utterly unfamiliar with how real IP systems work would think you could combine these two things under the same umbrella concept. It's just a daft idea.
Published: March 20, 2007 10:48 PM
Sasha Radeta
Stephan said:
-----
If someone emails me Hey Jude and I put this pattern of bits onto my MP3 player, I never use the buyer's CD or property. So, no trespass, no tort. mm'kay?
-----
In that case the person that replicated those unique pattern is responsible for violation of contract (by which he obtained this music composition). You try to escape tort issue, by returning to contract violation issue. That's bad... mm'kay?
Stephan said:
-----
A third party does not need to ever use the property of someone else to obtain information. For example you play the new Madonna song on loudspeakers on your front lawn. I record it from my house, or just hear it and remember it. Later, I perform it, or sell copies of my recording.
-----
Rothbard would say the following: you unintentionally used Madonna's song when you listened to it - but as long as you don't aggravate this to tort of financial injury, you are fine. You are not liable for unintentional trespass (unauthorized use).
You know my position is different and that I argued that music played publicly should not be copyrightable. Plus, it's hard to make a case that mp3 create any injury to musicians, since they actually promote their albums and concerts.
Stephan said:
------
But not all third parties who obtain a pattern or information ever have to commit trespass to do it.
----
It all depends to your definition of "use." According to Rothbard's logic, you do use some good whenever you enjoy any service that can be derived from it -- and according to Mises those services belong to the owner.
You certainly have to agree that I cannot replicate dr. Hoppe's latest book, without actually using it.
Stephan said:
----
"aS a result of fraud to another. The non-defrauded person has no cause of action whatsoever against the defrauder. Only his victim does."
-----
But in our example, the trademark holder is a victim. He suffered a financial injury (foreseeable by the violator) as a consequence of violator's unlawful acts. What's your definition of tort? It seems like you are narrowing it down to fit your anti-copyright position.
You can't just say: oh, aggression was not committed against trademark holder - therefore no tort case. Like you conceded, aggression is not the only category of tort (we have fraud, nuisance, negligence, etc.). However, you seem to have an interesting position on who can be a victim of a tort. What's your definition of a victim?
I thought that a victim is a person who has suffered direct, or threatened, physical, emotional or pecuniary harm as a result of the commission of a tort - in which case the trademark holder is a victim.
Published: March 20, 2007 11:02 PM
Sasha Radeta
Dr. Kinsella,
no need to get upset. I typed the answer to Brent, without seeing your posting (that you meanwhile submitted). All your questions and confusions regarding "third party" trespasses are answered in my posting above.
When I use term "property," I always refer to property as defined by Mises, Rothbard and Hoppe, so there is no need to ask me ever again whether I refer to ideas or something abstract as "property." You are just wasting space with such comments.
As far as patents go, I am against their application beyond those copyright rules: the owner should only be protected from unauthorized replication use of his physical property (when it comes to devices based on their invention) -- not to act as a monopoly reward or to cover ideas per se.
I don't care about our current IP law - since you know I advocate its abolishment.
Published: March 20, 2007 11:12 PM
Stephan Kinsella
But that is the sender. The recipient is in the clear.
"aggravate this to tort of financial injury"...? HO-kay. What else you got in your bag 'o tricks?
It all depends to your definition of "use."
No, it depends on your definition of property. If you are talking about a scarce resource, then it is clear I don't need to "use" it at all to become aware about things about it. If you mean the information is property, then that's a different story.
If I email to you a scan I made of Hoppe's book, and you receive a PDF file, you do not in fact "use" any scarce resource owned by me or Hoppe in order to replicate that pattern of bits I sent you.
So? His rights were not violated because no fraud was done to him. And it is not a rights violation to cause financial injury--that's what competitors do.
au contraire; the opposite. You are reinventing and broadening fraud law to try to find some way to ensnare third parties b/c you realize that if you don't, your whole case is doomed.
A tort committed on the victim, of course. I can't argue this elementary stuff w/ you any more. It's making me a victim.
Published: March 21, 2007 12:17 AM
Peter
Again, reference Kleenex, Xerox, Rollerblade; who fought to keep their names from becoming common language replacements for tissue, photocopies, and inline skating.
But those words are common language replacements for tissues, photocopies, and inline skating. (I didn't even know Rollerblade was a company!)
Published: March 21, 2007 1:09 AM
Sasha Radeta
Dr. Kinsella said:
"But that is the sender. The recipient is in the clear."
Well that's my whole point. When it comes to unauthorized use, someone must be responsible, inside or outside of contract.
"No, it depends on your definition of property. If you are talking about a scarce resource, then it is clear I don't need to "use" it at all to become aware about things about it."
Nope. We both agree on definition of property. But we don't agree on definition of "use." For example, I think that watching a movie via DVD player is a use (“derivation of service”) of that disc. You seem not to agree with that, as evidenced in our previous copyright discussion.
"If I email to you a scan I made of Hoppe's book, and you receive a PDF file, you do not in fact "use" any scarce resource owned by me or Hoppe in order to replicate that pattern of bits I sent you."
Sure, but in that scenario it was you who made an unauthorized copy. You will be the one responsible for your copyright violation (or a trespass, if you borrowed book from someone else). Again, copyright still holds, no matter how much you twist any scenario.
So? His rights were not violated because no fraud was done to him. And it is not a rights violation to cause financial injury--that's what competitors do.
Competitors do not normally cause financial injuries during the course of fraud. You seem to forget that "injury" is not the same as a market defeat. An injury is any harm or injury resulting from a violation of a legal right. There is a more than one victim of the act of fraud here, and the person who committed could have foreseen the effects of his unlawful action.
Let's say I am a car mechanic who defrauds your neighbor by installing messed-up breaks into your vehicle. This defect causes you to hit a professional basketball player who becomes permanently disabled. Although I only dealt with you, my unlawful acts caused his injuries too, and I was fully aware of possible consequences of my actions. I defrauded only you - but my unlawful acts caused major injuries to someone else. To say that I wouldn't be responsible for those injuries would be ludicrous (although, I can almost expect anything nowadays).
"au contraire; the opposite. You are reinventing and broadening fraud law to try to find some way to ensnare third parties b/c you realize that if you don't, your whole case is doomed.
I simply asked you what't your definition of tort. That's not a straight answer. I only said that it seems like you are narowing it down to fit your copyright theory, but I'll be happy if you clarify your position. Could you please give me your definition od tort, in order to explain how trademark holder is not a victim of one (although we know he suffers a foreseeable financial injury, as a direct consequence of an intentional, unlawful act).
"A tort committed on the victim, of course. I can't argue this elementary stuff w/ you any more."
Yhat's not a definition of "victim." I asked you for your definition, since you claim that we only have one victim in a trademark violation case. If victim by definition is "a person who has suffered direct, or threatened, physical, emotional or pecuniary harm as a result of the commission of a tort" - than trademark holder is clearly in that category. If you disagree with such definition, why don't you provide an alternative one?
Published: March 21, 2007 2:32 AM
Person
Brent,
You and Stephan brag about how private law *really* would work within a true system of private property rights. You repeat ad nauseam that it is just the state that constantly allows the abuse of it. I patiently wait for an example. It ought to be easy for you to show how simply it meshes with (dare I say) real property rights.
Published: March 21, 2007 8:35 AM
Dan Coleman
I have to break my former decision to stay out, because I need some clarification. Sasha, you write (in response to Dr. Kinsella (bold)):
"If I email to you a scan I made of Hoppe's book, and you receive a PDF file, you do not in fact "use" any scarce resource owned by me or Hoppe in order to replicate that pattern of bits I sent you."
Sure, but in that scenario it was you who made an unauthorized copy. You will be the one responsible for your copyright violation (or a trespass, if you borrowed book from someone else). Again, copyright still holds, no matter how much you twist any scenario.
I assume when you say "sure" what you mean is that Sasha did not use Hoppe's property. Therefore, he will not be held responsible for receiving and using the e-mail, although Dr. Kinsella might.
So then my question is: if in this scenario Sasha publishes 100,000 copies of Hoppe's book and sells all of them, do you claim that Sasha has committed tort? If so, how did Sasha commit tort without 'trespassing' in the first place?
If Kinsella is sued by Hoppe & co., can they sue for the full 100,000 copies in damages? If so, how can Kinsella be held liable for Sasha's actions?
Suppose that Sasha e-mails the .PDF to a hundred friends, who all produce 100,000 copies and sell the books? Clearly neither Sasha nor his friends are committing trespass on physical property. Is the only lawsuit the one-time action against Kinsella for the e-mail to Sasha?
Finally, in the earlier thread on copyrights and dancing, you said that the 3rd party does in fact commit trespass when they see an unauthorized copy. Why would you concede to Mr. Kinsella that Sasha does not commit trespass in receiving an e-mail of Hoppe's book?
Published: March 21, 2007 10:38 AM
Dan Coleman
I have a dumb question for Mr. Kinsella. What's the code that you are using to put text in quote boxes? Using italics for quoted text is okay, but it's easier to read your responses because of the visible separation.
Published: March 21, 2007 10:42 AM
Jean Paul
If I am "saddened" to know that someone, somewhere, is making music, am I "using" that music? Am I therefore committing trespass?
Or is the music maker committing trespass on me, by causing me to be sad?
Published: March 21, 2007 10:46 AM
Person
Dan_Coleman: It is interesting how Hoppe has no problem delegating aggression against those who violate his copyright. As for how to use quoteboxes, use the blockquote tag, but it's pretty buggy. Don't trust your preview screen :-/
Jean_Paul, you're trying to be funny, but your comment highlights the problem with Kinsella's derivation. He claims that 1) IP infringements are of non-scarce resources; and that 2) non-scarce resources are conflict-free. But obviously if people object to the infringement, there is conflict!
Published: March 21, 2007 10:59 AM
Sasha Radeta
Funny Dan Coleman said:
"I assume when you say "sure" what you mean is that Sasha did not use Hoppe's property. Therefore, he will not be held responsible for receiving and using the e-mail, although Dr. Kinsella might."
Why do you have to "assume" - when my position is clear! In such scenario, I was not the one who did any trespass and I didn't violate any contract.
HOWEVER, by copying Dr. Hoppe's book, Dr. Kinsella violated his copyright contract with Dr. Hoppe -- and he will be responsible for significant damages stipulated by that contract (the amount that publishers normally pay to replicate a book - which is what Dr. Kinsella did). Copyright holds.
Since my position was clear from the start - your entire posting was useless. Why do you waste the space and time.
------
Jean Paul,
According to Mises, ownership means full control of services (uses) that can be derived from a good. Is your knowing some information use of that music? Absolutely not. Is someone trespassing "on you" (using you without your permission) by causing your adverse reactions? Absolutely not.
Is your posting witty and funny? Absolutely not. Waste of space.
Published: March 21, 2007 11:11 AM
Dan Coleman
"No matter how hard for you is to understand this simple point: if a third party uses MY property without MY authorization (including unauthorized copies of somebody else, that according to the contract with that person now belong to me) - this person is committing a TRESPASS and it may be liable for TORT if I sustain some financial injuries."
So says Sasha in a different thread.
"Why do you have to "assume" - when my position is clear! In such scenario, I [DC: a third party] was not the one who did any trespass and I didn't violate any contract."
So says Sasha in this thread.
Does anyone else see a glaring contradiction here?
On the one hand, you want to affirm that 3rd parties have not trespassed. On the other hand, they did look at 'unauthorized copies' that apparently already belong to (in our scenario) Dr. Hoppe.
Which is it?
Published: March 21, 2007 11:23 AM
Sione
Sasha
As an aside. What do you think about the styling of some of the recent BMWs? Ugly or what?
Sione
Published: March 21, 2007 3:04 PM
Cosmin
Sasha is very confused. He's not actually pro-copyrights. He keeps talking of copyrights, while advocating mere contractually-enforced copy restrictions.
That he keeps saying stuff like: ["ownership rights apply to copyright" and "ownership means full control of the services that can be derived from a good."] has no relevance and serves only to extend his confusion to everyone else.
Fact is, replication is not a service that derives from a good, unless that good has self-replicating capabilities. Otherwise, replicating necessitates extra material that the inventor has no control over, the labor of the one doing the replicating, that the inventor has no control over (outside of a slavery situation), and the idea of the invention, that the inventor has control over only before it gets into someone else's brain.
To help clarify his position, I asked Sasha if the inventor could force a user to refrain from opening the device in question to study its inner workings (so that the inventor remains in control of the idea of the device). Here, Sasha told me that the inventor can in fact do so, but he later backtracked and now his position seems to be that the inventor only discourages use in a commercial venture of knowledge gained, by a clause in the contract.
The problem with his newest position is that one can back out of a contract (perhaps offering compensation), without erasing the idea from his brain. He is then free to use said idea in a commercial venture and is not subject to any contractually-enforced copy restriction.
Perhaps Sasha will counter that contracts are for life, that one can in fact not back out of a contract, or that it would be prohibitively expensive to do so. He might even say that the cost would be higher than all the money existing in the world, but really he'd just be advocating slavery.
Published: March 21, 2007 3:25 PM
Jesse
The code is <blockquote>...</blockquote>. Note that it doesn't nest properly on this site (the inner blockquote isn't highlighed or indented, and thus appears to be unquoted). That's why I stopped using it myself. I seem to recall that it also displays differently in the preview than it does in the comments.
Published: March 21, 2007 4:39 PM
Sasha Radeta
Dan Coleman,
My position was never contradictory.
If a third party uses MY property without MY authorization (including unauthorized copies of somebody else, that according to the contract with that person now belong to me) - this person is committing a TRESPASS and it may be liable for TORT if I sustain some financial injuries.
BUT DR. KINSELLA'S EXAMPLE DOES NOT HAVE A "THIRD PARTY" ISSUE. In it, the side in contract is committing violation - not a third party. How hard it is to understand that this is an issue of contractual breach - and not tort
----
Cosmin,
You are so confused.
I am advocating contractual copyright restrictions, as well as tort enforcement when it comes to third parties trespassers (who are not in contract)
As I explained to you - some sales (contractual exchanges) are final. You cannot unilaterally change the terms of your purchase (contract). When you purchase my book, you agree that your personal use will cost you $20 - while any replication of my book (the use of book during replication, photocopying, scanning) will cost you a lot more money.
You cannot unilaterally void such terms of exchange -- because that would be like lowering the exchange price without seller's agreement. Only with seller's consent you can change or void your contract. That is not a slavery, as you absurdly state. You agreed that property title over some specific damages will belong to the author, under certain condition - and that's the price you pay for use of that product.
You also said something incorrect: I never "backtracked" in any discussion with you. You asked "if the inventor could force a user to refrain from opening the device in question to study its inner workings (so that the inventor remains in control of the idea of the device)."
MY ANSWER WAS:
>>"How can someone prove that you did open a product that is in your personal use and "understood its inner workings?"
"...anyone can also dissect and observe chemical composition of medications - but if you decide to make replications of such product, you must pay the price that was specified in your contract (stipulated damages). There is no such thing as "unalienable right to use [any] knowledge" in order to commit a breach of contract or tort. If you received someone's good under condition that you will pay certain amount of damages if you replicate it - that's the price you voluntarily paid."
My answer was clear: people don't have to refrain from use that was not contractually prohibited - and they can keep their ideas in their minds. But if they act contrary to the letter of their contract, they will pay the price (which they voluntarily accepted).
Same goes for people outside of contracts: you can read a borrowed book without author's permission (unintentional trespass) - but you cannot use this trespass to make a lot of money by reproducing it and republishing it. Such use costs a lot of money -- and you committed a tort of financial injury (by not legally obtaining those rights, compensating the owner).
Published: March 21, 2007 4:42 PM
Sasha Radeta
Sione,
I don't like their "new direction." They lost their old charm.
Published: March 21, 2007 4:50 PM
Fred Mann
Sasha: "The fact that you don't recognize some invention (like piece of machinery) as an ownable good, only illustrates your left extremism."
So are you saying that the "invention" is the specific physical piece of machinery, or is it the IDEA which acted as the non-physical/non-scarce template for the creation of the physical item?
You say there are many definitions of "invention". But since you claim that we can not own ideas, even though Mises' definition clearly allows for that (since ideas are products of our brains, which we own), then I must assume that you are using "invention" to refer to the physical piece of machinery. Of course, if we plug in this definition, your statement makes no sense. When one is "using" a physical thing, another person can not be using this same physical thing in an entirely different way in an entirely different physical location at the same time (as one might be doing when "copying" your invention). Physical things have the property of having a specific location. So, as usual, you are really talking about owning ideas, even though you won't admit it.
Again, Mises' definition of property is incomplete. You can not own transmissions, reflections, abstract forms/symbols, or ideas, even though these might be considered "services" "derived" from a physical thing. They are non-scarce. You *CAN*, however, attempt to limit access to these things (i.e. by charging admission to view them). You can also attempt to inhibit re-transmissions of the information via contract. But once the transmission, image, etc. is viewed by a THIRD party, you can not accuse them of trespass (intentional or otherwise). One can not be accused of "unauthorized use" of something which is unowned and unownable.
Published: March 21, 2007 8:03 PM
Sasha Radeta
Fred,
First of all, I explained what I mean by "invention." Whether it is a mechanical device, or a piece of paper - it is a ownable physical good. When it comes to ownership, I don't care for ideas or "inventions" that are not materialized - because they cannot be owned.
So although you know my position on this well, you waste a good portion of your posting on a complete nonsense. ( even warned Dr. Kinsella not to ever assume that I refer to abstract ideas when I use term "property."
But then, misinterpretations of my statements are not enough. You now feel that you can misinterpret Mises - right here on Mises.org (o tempora, o mores). You say:
"Again, Mises' definition of property is incomplete. You can not own transmissions, reflections, abstract forms/symbols, or ideas, even though these might be considered "services" "derived" from a physical thing. They are non-scarce."
First of all, shame on you. Mises never said that you can "own" services. He said that ownership means that you control services that can be derived from a good. And that is indeed the case. if we didn't have that right - we would never be able to contractually and legally sell our labor services, rent our real estate, rent DVDs, charge transmissions, electrical power, etc.
Yes, if someone hooks up an illegal electrical output, if someone reads your book or views your DVD without your permission - those are all trespasses by the very definition. Any kind of unauthorized use (derived service) of your property is a trespass - and that has nothing to do with "service ownership" nonsense.
As far as scarcity goes, you even got this wrong: services are economically scarce, because there is an ongoing imbalance between wants and needs for those services and willingness to supply them (positive price... if we impose a price ceiling, there would be a chronic shortage for these services). Scarcity is not the only prerequisite of ownership - because there must be a physical good to mix our labor with. Not everything economically scarce is ownable.
Published: March 21, 2007 9:26 PM
Mike D.
If I was not a libertarian and bound by the non-aggression directive, I would like to appear in court with an M16 and inquire whether BMW claimed to "own" that particular trademark!
Published: March 21, 2007 9:35 PM
Sasha Radeta
After disarming you, people would laugh at you - not with you. BMW never claimed trademark issues for something other than cars. You don't understand the legal purpose of trademarks, nor this court's decision (no matter how wrong, based on my humble opinion).
"for the use of the letter M and the descriptor M6, as trademarks for automobiles, parts and accessories, ..."
Published: March 21, 2007 9:47 PM
Fred Mann
Cutting to the chase ...
In order for there to be tort, there must be trespass (or some other violation). Unless you OWN the transmission itself, a third party can not be accused of trespass ("unauthorized use") simply by viewing the transmission (as you said of Mrs. Smith in "Copyrights and Dancing"). Viewing is not using.
Of course, you want to say that viewing a DVD *IS* using the DVD, since that is what the DVD is designed for. But if Mrs. Smith IS "using" the DVD when she views it, then we must employ another term to describe what Mr. Smith is doing. He is the one controling the DVD. He is the one who decides whether or not the information on the DVD is to be transmitted. He sets the time of the transmission and decides whether the transmission will go uninterupted, or if it will pause for him to grab a snack from the refrigerator. He decides the mode of transmission (TV, projector, online stream, etc. ). Clearly Mrs. Smith (or any REMOTE observer of the transmission) is not "using" the DVD in the same way as Mr. Smith. Someone viewing Mr. Smith's online streaming of the DVD in Germany is clearly not "using" Mr. Smith's DVD.
Your mistake is that you use the term "use" to describe these two clearly different classes of action. This is the same type of error I was trying to point out above with your use of the term "invention". You use the physical and non-physical versions of "invention" interchangeably. Of course, you are either not aware of this, or you are unwilling to admit it.
On the subject of scarcity ...
If we define "viewing of a DVD" as a "service" (as I think you would like to do), then your statement, "services are economically scarce," is false. As I have already pointed out, the number of transmissions (even simultaneous transmissions) that can be produced by a single DVD are infinite. You are confusing ACCESS to the transmission with the transmission itself. When people buy a DVD, or pay to see an online streaming of a movie, they are not buying the information per se, they are buying ACCESS to it.
As a side note, I also want to remind you that we are talking about free-markets here. That includes free-market law. Common law is not necessarily the same thing as free-market law. Common law did not evolve under free-market conditions.
P.S. I did accidentally use "property" instead of "ownership" when discussing Mises' position above. But the key point is that "control" of "services derived" is plenty vague. Bottom line - you have no right to "control" what a third party does with non-scarce "services" like transmissions, since you don't own them (assuming they are legally attained).
Published: March 21, 2007 11:57 PM
Sasha Radeta
Fred,
You are misinterpreting my statements again. It does not matter that you use "property" instead "ownership"... what matters is that lied that Mises ever claimed that you can "own" services. And his definition ownership does not contain any "vague" terms. Again, if we did not have full and exclusive control of services that can be derived from our owned goods - than someone else might "borrow" our cars and rent them for money legally. And you are incorrect: we have a right to control how people will use services that can be derived from our own goods. If that wasn't the case, some people might borrow anything they want from us, use it, and then claim they didn't do any damage...
You even offer more insanity above your post scriptum, but I'll try to keep it short:
- I never claimed that you "own" a transmission. You can own a DVD - and then you can control who and under which conditions may use it. And yes, putting a DVD into a player and watching its content is a normal use (service controlled by the owner).
- Available services derivable from DVD are scarce because demand would exceed supply when there is no price to ration who will actually get to view it (rationing role of price is one of the first lesions in economics).
- Scarcity of diamonds could be much smaller to almost non-existent, if its producers wanted to exploit much more, open their reserves to flood the market and destroy their prestige, and stop advertising (so much that demand only comes from industrial use). On the other hand, if producers were not able to control supply and influence demand (play with scarcity) many producers would not have profit incentive to serve us with many wonderful inventions and other goods. That's what communists don't get.
Free DVD streaming would do the same thing and if owners of DVDs don't want to do that - you can't force them to do it. Viewing of DVDs will be scarce if they choose to make money like that.
Oh, by the way... I don't think that someone like you Fred, who doesn't even understand the first lesion in economics (scarcity of goods and services), is competent to criticize Ludwig von Mises. Excuse my honesty.
Published: March 22, 2007 12:24 AM
Cosmin
"I am advocating contractual copyright restrictions, as well as tort enforcement when it comes to third parties trespassers (who are not in contract)"
Your phrase should read: "contractual copy restriction" instead of "contractual copyright restriction". After all, you want to restrict the ability to copy, not the ability to hold copyrights, right?
That being so, we can observe that one needs no contract to breathe, since that is a real right, as opposed to the "right" to copy.
You then said: "As I explained to you - some sales (contractual exchanges) are final. You cannot unilaterally change the terms of your purchase (contract)."
I understand that the terms of the purchasing contract can not be changed, as long as the contract holds. But what I'm asking is: is the contract perpetually valid, or can one back out of this contract (the same way he can back out of any contract, really, perhaps paying compensation for doing so). The use of books in this example is awkward, since it doesn't allow us to really investigate all the possibilities.
Let's say I "buy" or rent a device. The contract states that I can not replicate said device. Fine. I don't. A few years later, I don't want the device anymore. I propose to return it and terminate my contract. Now, even after I've returned the object, I still have the idea of it in my head. Seeing as how I'm no longer bound by a contract, I use the idea from my head to build a similar device and sell it. Are you saying I'm infringing on anything?
We can also use medication as an example. I buy some pills that are supposed to make me feel better in some way. I analyse their chemical make-up. I use some of the pills, but perhaps they don't work for me. I send the rest back. However, other people seem to be helped by those pills. Knowing their chemistry, I make some myself and sell it to them. Are you saying that I'm still and forever entrapped in the original contract? And if so, how is that not slavery?
As for your backtrack, perhaps you're right. Maybe I just perceived it to be so. Maybe your answer at the time hadn't been as exhaustive as I would've liked and I inferred more from it than I should have, which is why it could have appeared to me as a change in position when you later merely clarified your stance. I apologise.
Published: March 22, 2007 12:43 AM
Sasha Radeta
Oh, by the way,
not all people have internet access, let alone a quality internet access that would allow them to rip the torrents in a moment, let alone enjoy the streaming on a big-screen TV... Plus many people choose to buy DVD use, because they like better features of the originals and they hate DVD burning...
So DVDs would be still in demand and their services scarce - even in your absurd scenario in which the owners want to destroy their business by letting internet folks access it for free.
Anyway, like I said, you can't force the owners to increase their supply to levels that you desire (although, that's what socialists always find difficult to understand... and they always want someone to force businesses to produce to their "full capacity")... What they don't get is that profit incentive will always attract the supply and the demand will guide it to the truly optimal level (one in which the producers will not punish themselves, like in Fred's imaginary streaming example).
Without freedom to determine your own supply of goods and services – many wonderful services would disappear from the markets. Fred did not have to use DVDs and transmission nonsense as an example. Any good can become non-scarce if you increase your output to exceed some limited demand (and you have surplus to give away for free). But why would you do something silly like that?
Published: March 22, 2007 12:46 AM
Sasha Radeta
Cosmin,
Etymology is not important, but I’ll indulge you. Just like Rothbard, I use the term "contractual copyright," because the owner has a right to control the use of his good, including using it in reproductive processes - and he can contractually allow someone to obtain that right.
As far as you examples with returned device goes, you assume again that you will be able to return this item "few years later" and that owner will simply void that contract, without actually making another one -- in which he would factually purchase that device back from you in exchange for your conditional transfer of damages in case that you do a replication of his item. If you find seller this stupid - more power for you.
The same goes for your pills example. Even now when you return something, sellers often run a receipt with their return policy on the back... Don't expect returns on medications though - because that could be dangerous and pharmacies aren’t messing with that.
Published: March 22, 2007 1:02 AM
Cosmin
"and they always want someone to force businesses to produce to their "full capacity""
We call that someone the free market. If a company doesn't produce to their "full capacity", in a free market, the competition puts that company out of business. What you're advocating is restriction of the free market, to favor the profits of the established companies.
Published: March 22, 2007 1:05 AM
Sasha Radeta
To cut the long story short -- if both sides void copyright contract -- there is none to break. However, don't expect someone to accept your return of merchandise, without new return/exchange contract, in which you would transfer the ownership of specified damages to the seller in case you make any replications. I know, a bummer. But no one is forcing you to make that return (intead of simply stop using the darn thing), just like no one forced you to buy the use of that product... No slavery there.
Published: March 22, 2007 1:09 AM
Cosmin
"you assume again that you will be able to return this item "few years later" and that owner will simply void that contract, without actually making another one -- in which he would factually purchase that device back from you in exchange for your conditional transfer of damages in case that you do a replication of his item."
I will not agree to any contract when returning an item. I merely want to void the previous one. If you claim that I can't in any way back out of a contract, just say it explicitly, so that everyone knows what a champion of freedom you are.
"The same goes for your pills example. Even now when you return something, sellers often run a receipt with their return policy on the back... Don't expect returns on medications though - because that could be dangerous and pharmacies aren’t messing with that."
I don't care if they want the pills back or not. I just want to no longer be bound by the original contract. I'm prepared to renounce my end of the contract (use of pills) and even perhaps pay some compensation to make that happen. Are you saying I'll be forever indentured to the company that made the pills?
Published: March 22, 2007 1:15 AM
Sasha Radeta
Cosmin said:
"We call that someone the free market. If a company doesn't produce to their "full capacity", in a free market, the competition puts that company out of business. What you're advocating is restriction of the free market, to favor the profits of the established companies.
:)
You made me laugh!
Soviets had the same logic, so that's why they often had tons of unsold items in supermarkets, while they also had shortages of many goods.
In a free market producers don’t supply everything they theoretically can. You supply whatever you think market will bear, in order to avoid surplus and giving out your merchandise for free.
I am only advocating proprietary restrictions (you can't use someone's property like a "common good") - and no, there's nothing wrong with profits, if they are possible (charging money for your DVDs still doesn’t guarantee you any profit).
Good night man. Rest, and let economics be.
Published: March 22, 2007 1:18 AM
Cosmin
"In a free market producers don’t supply everything they theoretically can."
But they do, unless they have a monopoly or collusion with the other producers (which wouldn't be possible in a truly free market anyway).
Published: March 22, 2007 1:26 AM
Sasha Radeta
Cosmin,
You say:
"I will not agree to any contract when returning an item. I merely want to void the previous one. If you claim that I can't in any way back out of a contract, just say it explicitly, so that everyone knows what a champion of freedom you are."
Man, don't be so impatient and such a bore! I already explained how to completely void any contract: it can be only done by the mutual consensus of both sides in contract.
You then say:
don't care if they want the pills back or not. I just want to no longer be bound by the original contract.
WELL THEY CARE! You didn’t sign a contract with yourself and the other sides has a say whether the two-sided contract will cease to exist. And if the seller does not want to allow you the return (if sale is final), you can't void this contract unilaterally.
There is nothing unlibertarian about "all sales are final" notices... We don't believe in unilateral violations of contracts, and people here know what kind of champion of freedom I am :)
Published: March 22, 2007 1:27 AM
Sasha Radeta
But they do, unless they have a monopoly or collusion with the other producers (which wouldn't be possible in a truly free market anyway).
You are clueless. When the price falls below average variable cost of many firms - that producers simply settle at some level of production. They never go to the point in which they produce everything they theoretically can and price goes to zero.
Published: March 22, 2007 1:30 AM
Cosmin
"They never go to the point in which they produce everything they theoretically can and price goes to zero."
In a free market, more producers enter the business, untill the price goes close to cost, and profit close to zero. That you didn't observe this in the real world only shows the dearth of free markets in the real world.
Anyway, this is off-topic. Returning to contracts, it's not like a submarine where both people have to turn the key. One party can in fact unilaterally back out of a contract, provided he pays appropriate compensation for damages incurred by the other party. (And I don't mean potential future damages, only real ones.)
Published: March 22, 2007 1:49 AM
Sasha Radeta
Cosmin,
you just confused the notion that profits go to zero in a hypothetical pure competition - with an insane notion that supply should go to its theoretical maximum even if prices go to zero!
That's not off-topic. It just shows your economic ignorance.
Once again...
The level of production (even in a hypothetical pure competition) will never go into a theoretical maximum that can be produced. Every producer must make his output decision, and cannot simply afford to produce everything he theoretically can - to the last penny of his savings.
Purely competitive sellers, just like monopolies, will simply look at the projected demand - and set their output so that it does not go to the point at which marginal revenue (the demand curve of purely competitive firm) is smaller than marginal cost. That does not guarantee the profit.
=====
Returning to contracts,
They are not your Alladdin's wonderful lamp. They are terms of market exchange, upon which to sides voluntarily agree. If you decide to violate your contract (unilateral decision, without other side's agreement) - you will pay damages that are specified by that contract. By the way, you are clueless what kind of injuries (not damages) you can produce when you violate your contact. And I don't mean "potential, future" injuries - but the consequences of acts that are contrary to the word of your contract.
Published: March 22, 2007 1:58 AM
Cosmin
"you just confused the notion that profits go to zero in a hypothetical pure competition - with an insane notion that supply should go to its theoretical maximum even if prices go to zero!"
Where have I ever said anything about prices? And especially about prices going to zero?
"If you decide to violate your contract (unilateral decision, without other side's agreement) - you will pay damages that are specified by that contract."
I'm not talking about violating a contract. I'm talking about backing out of a contract. Stop going off on tangents and answer the damn question for once in your life.
"...but the consequences of acts that are contrary to the word of your contract."
There are no acts contrary to the word of the contract if the contract doesn't exist anymore.
Published: March 22, 2007 2:08 AM
Sasha Radeta
Cosmin,
Don't act like a fool. You said that producers always produce to their theoretical maximum (even if supply exceeds demand).
- First of all, that situation would lead to zero prices.
- Secondly, that is nonsense, since all sellers pick their output based on projected demand curve and in the relation to their marginal cost!
So please accept my correction and take some basic economics at a community college.
======
Things are not any better when it comes to your knowledge of basic law:
You can't unilaterally void your contractual obligations, after you use someone's side of the barging. Exchange took place, you enjoyed someone's service - and other side is entitled to whatever conditions you agreed upon.
You can't reverse your use and you can't just force a seller to accept the annulment of exchange (and its terms). Some sales are final - and you can't dictate the return policy (another contract) based on your wishes.
If we followed that logic, I could contractually promise you that you'll get $50 do moan my lawn, and in case you clear my lawn from crabgrass (weed) pay you $500 -- BUT once you satisfy both conditions -- to simply "change my mind" and declare contract void, depriving you of your earned money. Now that's fraudulent, just like it would be fraudulent to keep property (specified damages) that belongs to someone else after I used that person's good (and we both agreed to this exchange prior to that use).
PS
Most of the stuff in this posting was copied from our previous copyright discussion. Cosmin is just too stubborn to read and think.
Published: March 22, 2007 2:23 AM
Cosmin
"Don't act like a fool. You said that producers always produce to their theoretical maximum (even if supply exceeds demand).
- First of all, that situation would lead to zero prices.
- Secondly, that is nonsense, since all sellers pick their output based on projected demand curve and in the relation to their marginal cost!"
Individual producers do always produce to their theoretical maximum in a free market. They don't have the luxury to produce less and lose marketshare. You, however, seem to be talking about producers in a certain market as a whole. In that case, supply is definitely adjusted, but not by individual producers holding back, but rather by some of them being forced out of the market or into bankruptcy.
Your argument also applies to producers in a market monopoly, but that isn't something really compatible with the free market.
In any case, let's get back to the contract situation.
You said: "If we followed that logic, I could contractually promise you that you'll get $50 do moan my lawn, and in case you clear my lawn from crabgrass (weed) pay you $500 -- BUT once you satisfy both conditions -- to simply "change my mind" and declare contract void, depriving you of your earned money."
You can absolutely change your mind and declare the contract void. Mind you, you'll have to pay damages for breach of contract.
Google contract breach, or anticipatory breach, or contract damages, or use wikipedia, or whatever, to find out what they entail, but please, don't remain an ignoramus much longer!
Published: March 22, 2007 2:57 AM
Sasha Radeta
Let me try from a different perspective:
Enforceable contracts are terms of exchange, or the total price paid for a good or service. You cannot change this price unilaterally. One side cannot use the other side’s service, and then decide to void his end of a bargain.
If you accept that the use of someone’s book comes with a condition that you don’t make its replicas, lawfully you cannot first use it – and then declare that your end of the bargain does not exist, because you now declare that your contract is void. That would be ridiculous!
Published: March 22, 2007 2:57 AM
Sasha Radeta
Cosmin, You are completely ignorant!
Every seller picks his output level, based on projections of demand and their known marginal cost curve. Producing theoretical maximum (regardless of demand) would in many cases lead to surplus and zero prices. That would be simply insane.
Back to ECO 101 classes! It's good you are hiding behind a pseudonym, after so much nonsense.
====
When it comes to contracts - you are at least using google and that's a first step in a positive direction.
You will pay damages for actions that are contrary to terms of your contract (like the amount that publishers' for replication rights) -- but if your contract specifies damages, you will have to pay them to the exact amount. You cannot void enforceable contract unilaterally. You can violate it, of course, but that's why you pay damages.
Published: March 22, 2007 3:05 AM
Sasha Radeta
I refuse to have any further dialogue with someone who is completely ignorant. I can only keep repeating things that are known to any college freshman:
1.
Every firm faces the output decision, based on its known cost curves and projected demand. It would be a firm’s suicide to produce whatever you can (to the last invested penny), regardless of your demand (and not caring about a surplus and zero prices)
2.
Only so called voidable contracts could be subject to being unmade at the election of one party. Examples of voidable contracts are:
• A contract entered into by a minor (under the age of 18) for non essentials.
• A contract signed by a person under the influence of substances such as illegal drugs, alcohol or medicines.
• A contract involving fraud in the inducement or material misrepresentation.
• A contract entered into by a person with limited mental capacity.
I hope that Cosmin’s position (that he can unilaterally void any contract) is not coming from this last condition. Enforceable contracts can only cease to exist when both parties fulfill it or revoke it.
Published: March 22, 2007 3:30 AM
Cosmin
So you're saying if I sign a contract to work for a company, I can not break that contract if another offer comes along, or if I win the lotto, or whatever...
Also, the company can't break that contract, even if their business takes a downturn and despite their willingness to pay compensation for breaking said contract?
Well, I assumed such situations were in fact possible. Thank you for enlightening me, Sasha.
"Every firm faces the output decision, based on its known cost curves and projected demand. It would be a firm’s suicide to produce whatever you can (to the last invested penny), regardless of your demand (and not caring about a surplus and zero prices)"
Firms just looove to have employees around doing nothing. Is that what you're saying? 'Cause that's what it means to not produce to their theoretical maximum. I'm not saying it doesn't happen, but as long-term strategy? Only your firm perhaps... Others will let go some employees, thereby lowering their theoretical maximum (but still attaining it, or trying to) to correspond to the demand of their product in the market.
Anyway, you used the diamond business as an example of free market. There's nothing more idiotic than that and yet you call me ignorant. I think I've wasted enough time with you.
Published: March 22, 2007 6:42 AM
Dan Coleman
Don't evade, Sasha. You write:
It seems like you are committed to this view, so I have no problem here (well, I have problems, but you aren't contradicting yourself at any rate). In the previous DVD example, Mrs. Smith watches the DVD with her husband, and according to you she is committing a(n unintentional) trespass.
Actually, the third party issue still exists. According to your copyright scheme, as soon as Dr. Kinsella makes the .PDF, that 'unauthorized copy' belongs to Dr. Hoppe, and is his property according to contractual agreement. Any e-mail forward by Kinsella is passing on Dr. Hoppe's property, not his own.
Thus, whether or not Sasha is aware that the e-mail is an unauthorized copy, the .PDF does in fact already belong to Dr. Hoppe, meaning that Sasha has committed an unintentional trespass simply by viewing it. Therefore, according to you, if he makes and sells 100,000 copies, he will be liable for financial damages caused to Dr. Hoppe.
Again, it seems to me that you are trying to hold two contradictory positions. Either Sasha commits some form of trespass or he doesn't. You can't claim that Mrs. Smith in her situation trespassed and hold that Sasha did not trespass, because both hold the same relationship to the product-owner. They are both third parties, not under contract, who use the producer's property without purchasing the ability to do so.
(Thanks, gentlemen, for showing me the 'blockquote'. I hope it works, but if not, then I suppose italics will be good enough for me).
Published: March 22, 2007 8:11 AM
Sasha Radeta
Cosmin,
so it is the last condition! Dude, ONLY "VOIDABLE CONTRACTS" can be revoked by other side. When it comes to enforceable contracts, you can violate them -- but you will pay damages which they specify. Even a child knows this.
And of course I used the diamond business to illustrate the issue of scarcity and how it could disappear (it's a favorite example of libertarians). You didn't get my point at all, poor guy.
Every firm, including a purely competitive one, faces the output decision. Producing everything you theoretically can and not considering demand curve would be idiotic! Firm always looks at the demand curve (which is eqal to marginal revenue in pure competition) - when it makes its output decision. It will set the output so that it never produces an item, which cost is higher than the revenue it yields.
Go back to school dude, and stop embarrassing yourself!
========================
Dan said:
You misunderstood. In our scenario, Dr. Hoppe's and Dr. Kinsella's copyright contract only states that in case the purchaser replicates the item, he will be responsible for the damages in the amount that regular publishers pay - plus some punitive damages. Therefore, only Dr. Kinsella is liable when he copies that book - and there is no third party issue.
However, if a copyright contract states that "all unauthorized copies will belong to the author" -- then this pdf file belongs to dr. Hoppe. Receiving this file on my part is like accepting some stolen merchandise, bona fide. In that case, I would indeed commit an unintentional trespass - and if my actions cause a tort of financial injury to the author - then I would indeed be responsible.
Either way, copyright holds. And I didn't contradict myself -- we just assumed a different kind of contract, in order to avoid another discussion on bona fide, unintentional trespass, and the responsibility for injuries in those cases.
Published: March 22, 2007 10:50 AM
iceberg
Semantics, semantics.
You don't "receive" a file when you are emailed a PDF; what actually occurs is that scattered molecules across a few spinning metal platters have the orientation of their magnetic polarity arranged to a manner bearing meaningful information to a computer.user.
Published: March 22, 2007 11:44 AM
Sasha Radeta
Whatever dude, whatever.
I explained why that is irrelevant. Even if I received a physical photocopy - Dr. Hoppe would not have a case against me, based on our scenario. It was Dr. Kinsella who violated his contract, and he is responsible for the damages.
Published: March 22, 2007 12:10 PM
Sione Vatu
Sasha
Yes. That's what I think has occurred with them as well. The 7-series in particular has suffered. The story I heard is that the chief designer had some sort of family tragedy and resigned to attend to it. Then Chris bangle showed up and boasted he'd take the company in a new direection. He sure did that. Now the story is that he's been moved sideways and a Dutch guy has been goven control. He did the new 5 and 6 series. He's constrained to operate within the corporate design themes set by Bangle.
The really bad news is how Mercedes has responded by blinging up the new S-class.
This sort of thing is bad news for good taste I reckon.
What to do. What to do. Any ideas? I have a suggestion if you're interested.
Sione
Published: March 22, 2007 1:28 PM
Sasha Radeta
Sione,
Adrian van Hooydonk participated in, and he will continue along, Chris Bangle's "revolution." Bangle actually moved up (you can say it's a sideways move, when they make you supervise rather then design), but Hooydonk's selection suggests they must have been really happy with his designs - and as you mentioned Mercedes seems to be infected too :) So much for the European taste...
What suggestion you refer to?
Published: March 22, 2007 1:41 PM
Cosmin
"so it is the last condition! Dude, ONLY "VOIDABLE CONTRACTS" can be revoked by other side. When it comes to enforceable contracts, you can violate them -- but you will pay damages which they specify."
I don't get what you're trying to express. Are you saying that the specific examples of contract that I've brought up belong to one of the four categories that you outlined as being breakable?
If one person (with full mental capacity) signs a contract to work for a company, can he break that contract or not?
Similarly, if one person (with full mental capacity signs a contract to work for a company, can the company unilaterally break the contract?
Countless examples from the real world would indicate that both situations are entirely possible.
In fact, forget breaking contracts, if you're uncomfortable with it. Let's say I rent a device. When the time I've rented it for runs out, I return the device. My association with the company and the product is now terminated. Are you saying there's a clause in the contract that is still ongoing?
Going back to the medication example, let's say I do use all the pills. They're gone. I throw out the empty bottle. Are you saying I'm still and forever indentured to the pharmaceutical company that made those pills?
How do you reconcile these perpetual clauses with the notion of freedom?
Published: March 22, 2007 2:16 PM
rtr
Why is Sasha still making arguments that were wholly defeated in past discussions?
Action cannot be compelled, even with contract. All you need is one example to prove the claim wrong, although the examples proving the claim wrong are infinite. Pomising sex in advance does not entitle another to rape if the party changes their mind at any time. The example clearly shows that would be rape, violent offensive action. And likewise any other example of compulsion, even if contracted, is also violent offensive action. That *obviously* also means any contracted "damages" being forced is just as violent as compelling sex. Sex is material. Money is material. Forcing either is violent rape or violent theft.
Contract is not trade, but the promise to trade. Trade is final, an exchange of one thing for another.
There are no material damages whatsoever from copying anything which another claims copyright or patent on, whether one makes a contractual agreement to not copy, or one does not make a contractual agreement to not copy. One cannot declare in advance, before divulging their further words, their further ideas, that what they say or think cannot be said or thought by another, no matter if they shout it in a public square, write it in a book sold by a bookstore, or inscribe it on any product they sell whatsoever. No matter if someone voluntary agrees to not copy at first and then changes their mind at a later time. Their only option is silence in the first place.
It would be absurd, and a clear violation of First Amendment Free Speech, to prevent a newspaper from quoting what a politician said, either in whole or in part, no matter if the politician prefaced his remarks with a claim of copyright. All patent and copyright grants are clear violations of free speech. If someone sees your unique logo flag flying across the street, there's nothing you can to to prevent them from flying the exact same *looking* (for it is clearly seperate material property) logo flag on their own property. Plus, there's an infinite number of examples of absuridity which discredit all patent and copyright claims, such as prohibitions against others building doors and windows into their homes or computers, or phohibitions against others wearing any clothing whatsoever. All the examples of patent and copyright are on that continuum of absurdity.
The original actually existing material property is just as whole as it always was and still possessed by the owner, or returned to the owner, if there is a dispute to be resolved. That's all that can ever be in dispute: things which are real, which actually exist, which were actually involved in a trade, not limitless material posessions which were never originally involved in any actual final transactions or temproary rented transactions. Words and ideas cannot be violently transferred out of someone's head. Any attempt to silence another, is a violent violation of Amendment #1, no matter if contracted or not contracted. The inventor is wholly dependent upon *continuuing* voluntary agreement from others to not copy, and that voluntary agreement can be broken at any time with no material damages whatsoever.
Published: March 22, 2007 3:19 PM
Sasha Radeta
Cosmin,
Of course that you don't understand theory of voidable contracts, because you're totally ignorant.
Only "voidable contracts" can be revoked by unilateral (one-sided) decisions. I outlined several examples of such contracts. Enforceable contracts CANNOT be terminated by one-sided decisions. It would be like changing your price, without asking your seller. Ask Dr. Kinsella about characteristics and definition of voidable contracts, if you don't believe me.
When it comes to rent - same thing applies. You used someone's good under the condition that you will not replicate it. That's the price you paid and you can change it by violating that agreement.
----
rtr,
you are clueless. As Rothbard stated:
"...validly enforceable contracts only exist where title to property has already been transferred, and therefore where the failure to abide by the contract means that the other party’s property is retained by the delinquent party, without the consent of the former (implicit theft). Hence, this proper libertarian theory of enforceable contracts has been termed the “title-transfer” theory of contracts"
Enforceable contracts ARE exchanges of real property transfers - not just mere promises. It is illegal to promise someone $100 to moan your lawn -- but after the job is completed to say that you don't own anything, because you change your mind and you don’t need that service.
Just like you (legally) can’t obtain the use someone’s good in exchange for some damages if you replicate that item – but then to say you change your mind once you use it – and say you don’t anything.
Everything else you wrote is too incoherent and I can't punish myself by reading it.
Regards.
Published: March 22, 2007 6:26 PM
Fred Mann
Just to be clear ...
If Mr. Smith connects his DVD player to the internet, are you saying that everyone who tunes in to the stream on their computers around the world is actually "using" the DVD?
Published: March 22, 2007 9:30 PM
Sasha Radeta
Fred Mann,
They are all enjoying the service derived from that DVD - and according to Mises (and facts of life, proven by rent and labor contracts), the ownership means full control of those services. However -- all these people can be observed as unintentional trespassers, but they will not be responsible for any tort just by that trespass alone. As long as these individual (unauthorized) users don't initiate further financial injury to the owner, they will be legally fine.
As far as Mr. Smith goes, if he has a copyright contract with the DVD's owner, his internet broadcast is a violation of that contract. He will be responsible to pay expensive rights he assumed, plus punitive damages.
Published: March 22, 2007 10:34 PM
Cosmin
rtr, he'll never agree, even with the most sensible arguments, which is why I'm granting him his lame premises only for the sake of discussion, and follow them logically to their absurd end.
Sasha, you keep saying everyone is ignorant and clueless. I contend that only idiots use personal attacks as a debate tactic. Continue on your path and you'll have proven your worth.
"Only "voidable contracts" can be revoked by unilateral (one-sided) decisions. I outlined several examples of such contracts. Enforceable contracts CANNOT be terminated by one-sided decisions."
Do you have trouble reading? I never said anything about revoking, voiding or terminating contracts unilaterally.
What I did was ask if purchase contracts have clauses that are perpetual, ongoing after the use of the product involved in the exchange is expired. Seems like a pretty forward question. You didn't answer. Another common debate tactic of yours.
I also advocated breaking out of contracts (yes, unilaterally). Something like an anticipatory breach. The difference with the voiding of contracts that you're falsely imputing to me is that I fully expect the party breaking the contract to have to pay compensation for the damages incurred by the other party.
And yes, despite what you might think, people do break contracts. I gave a couple of examples:
"If one person (with full mental capacity) signs a contract to work for a company, can he break that contract or not?
Similarly, if one person (with full mental capacity signs a contract to work for a company, can the company unilaterally break the contract?"
Both of these happen an immeasurable number of times. Yes, the party breaking the contract pays damages to the aggrieved party. I'm not against that. Just know that the compensation is calculated by real damages incurred, not speculated future earnings.
Specifically, the person let go from his contract by the company must make a good faith effort to find similar employment, and the company will pay the difference of salary between their broken contract and the guy's new contract. Or, if the person breaks his contract with the company, the damages he is liable for are the costs in time and effort that the company undertakes to find his replacement.
In our current predicament, then, a person breaking a rent contract halfway through its duration, for whatever reason, is liable for the loss of income suffered by the company because of his breach. Meaning, the other half of the contract, or untill the company rents the device to someone else.
And no, your perpetually binding "slavery" clauses don't survive this break of contract.
Published: March 23, 2007 1:14 AM
Fred Mann
"... all these people can be observed as unintentional trespassers, but they will not be responsible for any tort just by that trespass alone. As long as these individual (unauthorized) users don't initiate further financial injury to the owner, they will be legally fine."
So they are unauthorized users. But what are they using -- the DVD or the service derived from it? They are not the same thing, as you acknowledged above.
Published: March 23, 2007 1:26 AM
Sasha Radeta
Cosmin,
After you created some of the most ignorant postings on this blog, there is no place to that kind of tone from you.
It is not my fault you talk about things that you are completely clueless about. I know that you are mad at the fact that I had to teach you some basic economics (and explain why your excursion into economics was completely idiotic) but -- now you go into lying about your babble about contracts.
-------
After I tried to explain that enforceable contract cannot be void (annulled, revoked) by the decision of one party, poor Cosmin insisted that contract stops to exist when he decides to get out of it.
These are your words::
I will not agree to any contract when returning an item. I merely want to void the previous one. If you claim that I can't in any way back out of a contract, just say it explicitly, so that everyone knows what a champion of freedom you are.
When I repeated that one side cannot void contracts unilaterally -- that this side can only make a breach of contract, poor Cosmin insisted:
"There are no acts contrary to the word of the contract if the contract doesn't exist anymore."
But now... he changed his mind. poor guy "googled" about contracts and saw something about breaches of contracts. He now says that he never argued that the could unilaterally void the contract:
"Do you have trouble reading? I never said anything about revoking, voiding or terminating contracts unilaterally."
Poor guy… I don't pitty his lack of abilities... I pitty his absence of any shame. He even hallucinates that I didn't want to answer his silly questions. As if I would read even a half of his nonsense. Plus, in his nervous breakdown, he seems to be trying to convince me of something I always claimed: that a person can breach his contract -- but not break it unilaterally. And if his contract specifies damages he must pay for such breach (like in labor contracts with actors, athletes)- they will pay those exact damages based on that contract. That's where all this stuff relates to copyright --- but that's too much for Cosmin.
Published: March 23, 2007 2:08 AM
Sasha Radeta
Cosmin,
After you created some of the most ignorant postings on this blog, there is no place to that kind of tone from you.
It is not my fault you talk about things that you are completely clueless about. I know that you are mad at the fact that I had to teach you some basic economics (and explain why your excursion into economics was completely idiotic) but -- now you go into lying about your babble about contracts.
-------
After I tried to explain that enforceable contract cannot be void (annulled, revoked) by the decision of one party, poor Cosmin insisted that contract stops to exist when he decides to get out of it.
These are your words::
When I repeated that one side cannot void contracts unilaterally -- that this side can only make a breach of contract, poor Cosmin insisted:
"There are no acts contrary to the word of the contract if the contract doesn't exist anymore."
But now... he changed his mind. poor guy "googled" about contracts and saw something about breaches of contracts. He now says that he never argued that the could unilaterally void the contract:
"Do you have trouble reading? I never said anything about revoking, voiding or terminating contracts unilaterally."
Poor guy… I don't pitty his lack of abilities... I pitty his absence of any shame. He even hallucinates that I didn't want to answer his silly questions. As if I would read even a half of his nonsense. Plus, in his nervous breakdown, he seems to be trying to convince me of something I always claimed: that a person can breach his contract -- but not break it unilaterally. And if his contract specifies damages he must pay for such breach (like in labor contracts with actors, athletes)- they will pay those exact damages based on that contract. That's where all this stuff relates to copyright --- but that's too much for Cosmin.
Published: March 23, 2007 2:13 AM
Sasha Radeta
Correction there (I made mistake in typing):
"I always claimed: that a person can breach his contract -- but not void it unilaterally."
And if contract specifies damages for that breach - it still legally holds
----
Fred,
To "use" means to put into "service." And those services should be fully controled by the owner. When someone else derives services from your property (without your permission) that's a trespass
Published: March 23, 2007 2:17 AM
Alan Dunn
Sasha,
I'm assuming that the letter M being generic is not relevant to the case in the article ?
Is it because the M was used in a similar manner by infinit to how BMW used it?
I think Apple / Mac and the Beatles had some arrangement that Apple could use the Beatles record logo provided they didnt "use it" for musical products.
Given the existence of the Ipod and the BMW case unfolding as it did, it looks like it's "game on" between the Beatles and Apple.
I have no legal background so I don't assume I am an authority on such matters.
cheers
Published: March 23, 2007 6:17 AM
Dan Coleman
I can't help but notice that Sasha evaded Cosmin's questions completely, focusing instead on personal attacks. Interesting.
Sasha, can you say what you think about the following?:
"If one person (with full mental capacity) signs a contract to work for a company, can he break that contract or not?Published: March 23, 2007 7:03 AM
rtr
Sasha Radeta wrote:
As Rothbard stated:
"...validly enforceable contracts only exist where title to property has already been transferred, and therefore where the failure to abide by the contract means that the other party’s property is retained by the delinquent party, without the consent of the former (implicit theft). Hence, this proper libertarian theory of enforceable contracts has been termed the “title-transfer” theory of contracts"
------------------------------------
How many times can you ignore that words, that ideas, are not physical, are not material, are not property, capable of being exclusively owned? There is *never* any title whatsoever to ideas, to words, to sounds, to images. There can only be title to actually existing physical things. In the case of a book, that is the physical construction matter the book is made of, such as paper. There is no title whatsoever to any specific instance of any word, or any instances of specific patterns of words.
--------------------------------------------------
Sasha Radeta:
“Enforceable contracts ARE exchanges of real property transfers - not just mere promises. It is illegal to promise someone $100 to moan your lawn -- but after the job is completed to say that you don't own anything, because you change your mind and you don’t need that service."
-------------------------------------------------
An exchange of real property is called TRADE, not contract.
If you promise to pay someone to mow your lawn, they mow your lawn, you refuse to pay, you are liable only for the market rate value of the labor of mowing that lawn, nothing more. If there's a dispute about the use of a book, the dispute is about the market value of the physical paper pages which construct that one single construction of physical paper pages. Nothing more. You're a fanatic wannabe despot claiming limitless damages and confiscation of physical material property beyond the actual single book pages in dispute. Slavery and servitude is not a valid contract; it's wholly dependent upon contuing voluntary willingness of the enslaved/servile which can be abandoned at any time with no material damages.
----------------------------------------------
Sasha Radeta:
“Just like you (legally) can’t obtain the use someone’s good in exchange for some damages if you replicate that item – but then to say you change your mind once you use it – and say you don’t anything.”
-----------------------------------------------
Sasha Radeta:
“Everything else you wrote is too incoherent and I can't punish myself by reading it.”
-------------------------------------------------
Not only is that the talk of a coward who’s arguments have been wholly defeated, it applies perfectly to your previous sentence.
Published: March 23, 2007 9:24 AM
Sasha Radeta
Dan,
Don't be ridiculous. After Cosmin ignorantly assumed that one party in contract can unilaterally void it, I explained the reality quite clearly (and that's your answer):
One party can BREACH a contract (like with actors, athletes) --
-- but if contract states that side who breaks the contract must pay some damages in the event he breaches his contract -- he must pay these damages. Even Cosmin understood this one.
If a contract specifies right of one party to break it without damages -- neither side would pay any.
======
rtr,
Don't waste our space on this thread with nonsensical statements. I never claimed that ideas can be owned. In copyright contracts there must be transfer of some good or service -- and in the event of contractual breach, there would be a theft.
Contracts are not trade -- they are terms of exchange. Mere promises can be freely violated at will by one side -- but enforceable contracts cannot, because this implies theft.
For example, Dan and Cosmin obviously don't understand that you can't use someone's labor -- and then change your mind about the conditions you voluntarily accepted in contract -- you will still owe the amount that was specified in contract (contract still holds, in spite of your breach).
What poor rtr is suggesting is that whenever you are dissatisfied with price you have to pay --- you just break the contract and court will award you more "fair" market price :)) INSANE!
Individuals pay (and they should pay) different prices. There is no reason why courts would become arbiters of people's prices -- and it would be a complete contradiction if they would use average of (different) individual prices in reaching such socialist, unjust, and completely insane decision. I guess such court revisions of voluntary, free-market decisions are “freedom” that anti-copyright crowd advocates. As you already know, each individual has his own price of goods and services. Fair price is only the one upon which both party voluntarily agreed. It is not job of the courts to impose an average on sides in exchange.
Published: March 23, 2007 11:04 AM
Sasha Radeta
"Not only is that the talk of a coward who’s arguments have been wholly defeated,"
Ha! There's another comedian. Defeated by what? Your ignorance of economics and basic contract law? No way....
By the way, let me clarify the sentence that got you confused:
It would be illegal for you to obtain the use someone’s good in exchange for one price -- and then to decide that you are not going to pay this price. When you agree to pay damages in case of contractual breach --- that is the price you pay for the use of someone's good (book, DVD). You cannot unilaterally "void" this contract -- and you will still be responsible for any damages this contract prescribes (like for unauthorized replication, broadcast, or other commercial uses).
Published: March 23, 2007 11:27 AM
rtr
Sasha Radeta:
"I never claimed that ideas can be owned."
Then why are you quoting Rothbard talking about *property*? There's no intellectual "property". Case closed.
Sasha Radeta:
"It would be illegal for you to obtain the use someone’s good in exchange for one price -- and then to decide that you are not going to pay this price."
The only good you are talking about is paper pages. Doesn't matter what is or what is not scribbled upon the pages. You are in absurdity if you claim nobody else can construct paper pages with scribble upon them, what a true patent or copyright of any book would really mean. You've already agreed what's written, ideas, are not capable or being exclusively owned and are not property.
All your examples of contract are invalid because slavery and servitude is not enforceable. We covered this the last time around. Compelling material recompence is no different than compelling material action. They are *both* invalid contract. It's as absurd as making a contract with someone who doesn't know better for them to pay you for every breath of air they breath. There's no material damage done to you the moment they decide to no longer pay you for breathing air which is freely available.
Sasha Radeta:
"When you agree to pay damages in case of contractual breach --- that is the price you pay for the use of someone's good (book, DVD). You cannot unilaterally "void" this contract -- and you will still be responsible for any damages this contract prescribes (like for unauthorized replication, broadcast, or other commercial uses)."
There is no valid contract in the first place. Of course you can unilaterally void paying somebody for something they don't own. You cannot force someone to pay for something you don't own, which is not your property. All you ever own are physical material things, such as paper with splotches of ink patterns. In addition, all your unilaterally voidable contract applies only to one single specific instance of material paper pages with splotches of ink which was involved in the transaction. If those pages are in a dispute, they can easily be returned to you in perfect original condition.
Other pages with other splotches do not belong to you, never did belong to you, never were traded to you in voluntary exchange, even if those other pages not owned by you exactly resemble the pattern of ink splotches in your original. You don't own the pattern, you don't own the ideas, you don't own the words -- AS YOU'VE ALREADY AGREED.
Thus, you have NO AUTHORITY, NO TITLE, with which to make a contractual use regarding words, ideas, images, sounds, etc. You cannot regulate that which you do not own. Your original pages are just your original pages. They don't spontaneously duplicate or reproduce themselves into other tangible material property. Any other objects which resemble your original, in part or in whole, exactly or less than exactly, were created from material property not ever a part of your original material property.
Your original pages cannot be damaged even by the "renter" (even though it's clear the new party in possession is an owner) burning them. You have no valid use contract. We've been over this before. Has any library or individual ever been sued for burning a book, for having a book burn? No. That clearly shows the original pages with splotches of ink have been traded in whole. And you have no remaining contract over any manner whatsoever in how those pages are used. Your attempt to prohibit action over property you don't own is an act of violence. You have no "valid" contract. You have no contract whatsoever. You cannot compel silence without violating freedom.
Published: March 23, 2007 2:09 PM
Sione Vatu
Sasha
You're well informed.
Anyway, I recall how similar the Alfa 164 and the Peugeot 605 of the 1990s looked. It turns out they were designed by the same studio ('Farina). Both were good looking cars. I don't think that either Peugeot or Alfa realised how similar the designs they purchased from 'Farina actually would turn out to be.
Take a look from the profile view and you'll see what I mean. The two cars external appearance was differentiated only by some fine details (such as bonnet crease lines and grill). Aside from that they could have come out of the same plant! It did not seem to cause confusion for either maker or stir up trouble between any of the parties.
After considering that, I thought that a return to abandoned design themes should not be objectionable and could be achieved relatively easily. Note the preponderance of small specialist car manufacturing firms (often known as "kit car" manufacturers) doing exactly that. Several of these have been producing direct copies of exotic automobiles for years. Several have been in dire legal trouble for producing designs that are similar looking to those of the large scale manufacturers. For example, I understand Ferrari goes after anyone who uses a shape considered too close, even for designs they ceased manufactured way back in the '70s. Also they have been successful closing businesses down for doing this, even when they themselves used the designs of others or elements of the designs of others in their original vehicles... I supposed we could argue the legitimacy of that.
Anyway, what I was thinking was a BMW style of vehicle similar to their early (handsome) designs. The Falcon (presently built in Australia) has its hard points in approximately the correct position for a reskin. A "kit" outfit could make suitable panels quickly on soft tooling. The costs are about right to make the proposition economic.
Where the trouble appears is with BMW choosing the Ferrari route and taking action. I'd thought an altered grill should cover it, but in today's situation it would be hard to know for sure. Given the Peugeot/Alfa example above one would think that some subtle tweaks would cover it. The worry is how much needs to be altered before you attract unwanted attentions. Is it enough to lose the attractiveness of the original design theme? Could be.
Interesting question: Should BMW, having abandoned the original style be entitled to monopolise it by way of litigation, even though they no longer employ it?
Sione
Published: March 23, 2007 2:53 PM
Sasha Radeta
Rtr,
I am quoting "Rothbard talking about property" -- because he was a defender of contractual copyright and he also followed Mises's definition of ownership. You havent’t even bothered to read Rothbard, yet, without any shame you mention his name in anti-copyright context.
If you own something -- you have right to control services that can be derived from a good. That's why owners can sign contracts in which they rent their hotel rooms, rent their cars... an yes -- allow only limited use of their goods (copyright). You cannot use someone's service -- and then when you have to pay for that service (amount based on contract) to declare that contract void -- asking for court to determine your "market price".
I didn't bother to read most of what you wrote, but since it must be based on nonsense that you can't contractually establish terms of use of your own property -- I know it's a complete nonsense.
Regards.
Published: March 23, 2007 3:01 PM
rtr
Sasha Radeta:
"If you own something -- you have right to control services that can be derived from a good."
Unfortunately for you, you've already agreed you can't own words or ideas. Thus, you cannot regulate its use contractually.
---------------------------------------
Sasha Radeta:
"That's why owners can sign contracts in which they rent their hotel rooms, rent their cars... an yes -- allow only limited use of their goods (copyright)."
The only thing book publishers own is paper with splotches of ink. They don't own any words, any ideas, any content which may or may not reside in the physical material property. YOU'VE ALREADY AGREED THAT CAN'T BE PROPERTY. You've lost.
The only thing you can regulate, the only thing you can authorize, the only thing you can transfer title to, the only thing you can contract the use of, is of a physical material object. In the case of a book, that would be the existence of any other books with pages and splotches of ink, no matter the content. Got that stupid? See how absurd that would be?
The ideas/words/sounds content is irrelevent, is not ownable, is not subject to any valid contract, is not subject to any "use" authority. Got that stupid?
Let the thread know if you were able to read that far this time. And then reread to see how your arguments were wholly destroyed -- again.
Published: March 23, 2007 3:43 PM
Fred Mann
"... all these people can be observed as unintentional trespassers ..."
" To "use" means to put into "service." And those services should be fully controled by the owner. When someone else derives services from your property (without your permission) that's a trespass."
Here is where you make your mistake. I still have many issues with your terminology, but even if we accept all of your terms, these third parties are still not trespassers. Mr. Smith **IS** in full control of the services derived from the DVD. He is the one allowing the broadcast/transmission. He is in full control of the broadcast. The third party viewers are merely observers using their own equipment on their own property. They are not using the DVD or causing the broadcast to occur. They have already been granted access to the service via the publicly-available stream. In making the DVD stream publicly available, Mr.Smith AUTHORIZED the use of that service.
If Mr. Smith was not supposed to allow others to view the transmission, then he is in breach of contract. He is the only party that could ever conceivably be held responsible for any damages that may result.
Of course, the very idea that one could be accused of trespass when merely observing something from their own private property without making any attempt at invasion (i.e. hacking) is ridiculous on the face of it.
Published: March 23, 2007 8:49 PM
Sasha Radeta
Rtr,
If I own my book (paper and ink) - I can control the way someone uses it. I can contractually sell only limited uses of my book, while restricting other ones. That's it.
-----
Fred,
I just restated Rothbard's position. Observing DVD's content is its use (service derived). The fact that you observing it via your computer is really not the issue, since it's the same as if you did it directly with your eyes. Trespass does not have to be a direct invasion of property -- but it is an unauthorized use. Computer hacking should be a crime, if someone derives services from your property (computer) without authorization. Mises's definition of ownership also has some interesting privacy implications, but I don't want to get us off-topic.
I respect your position, but, as you noted, Mr. Smith is committing a contractual breach and he would be responsible for those expensive broadcasting rights. That should be good enough for now, as far our progress in discussion goes. You are now approaching Rothbardian camp :)
-----
I don't have much time, but I will try to respond to Sione:
"Interesting question: Should BMW, having abandoned the original style be entitled to monopolise it by way of litigation, even though they no longer employ it?"
Well, some will argue that because of past association with, this would create confusion with customers... The fact is that after some period that argument will no longer hold and that old design can be used without any confusion and legal controversy.
Ferrari is aggressive precisely because smaller number of units account for their revenue and their 70s styles are still widely recognizable and associated with their name. They would say that Peugeot/Alfa voluntarily chose to be similar, but they don't want to be...
Anyway... With some cosmetic changes, you should be able to make your version of old BMW's design. And after some time, you should be able to remake their abandoned retro designs.
Unfortunately, it's not me who'll decide the faith of such endeavor.
Published: March 23, 2007 9:11 PM
Sasha Radeta
Posted by: Stephan Kinsella at October 12, 2005 1:49 PMWhen it comes to trespass, the word "use" rather than "control" can be used to describe it. Actually, since Dr. Kinsella correctly considers junk mail as a form of trespass (which doesn‘t take the control of your computer, but it in fact uses it without owner‘s permission), I think that essentially there is no difference in out positions (how in the world did we get here.... must be my wonderful temper and friendly personality, as well as Dr. Kinsella’s openness to criticism and new ideas :-)
Anyway, this may be of help to you Fred when it comes to trespass: http://blog.mises.org/archives/004201.asp
And when we have a trespass that causes financial injuries -- that's tort.
Other side of copyright coin are contracts -- and here we reached almost 100% consensus. Well actually, poor souls like Cosmin and RTR are still resisting, because they are confusing different kinds of contracts (implied-in-fact; limited duration; etc.), without realizing what kind of enforceable contracts we're talking about... but other than that, this was a more pleasant thread :-)
Published: March 24, 2007 12:06 AM
Sione Vatu
Sasha
Yes. In today's situation it's a difficult call. Do you go ahead or not? It's a make or break decision. You are invsting in tooling and a business that could be dragged into court at any time. There's no winning in court but there is considerable expense.
Lamborghini take the opposite approach to Ferrari. They welcome the copies. Their approach has been to consider immitation good PR for their business. Interesting how the two companies have taken such divergent views. When I last visited the factory the attitude was that "we make the best Lamborghinis", the others follow. They did not have a high regard for Ferrari either! Ferraris were stylish and reasonably quick but they were considered "soft." I think I know what they mean.
BTW I have not been back there since the VAG take over. I understand the Germans are intending to re-engineer the cars now. That may well mean the cars get higher top speeds but get softer, larger and heavier, less extreme. In other words, more like Ferraris. What a shame that would be.
Returning to the Falcon reskin and "kit cars." I see this area as one where the present IP legal situation is dangerous and destructive, for it defeats innovative new companies seeking to establish themselves in market niches where demands does exist. Presently the need is not being met. It may not be allowed to be met.
What do you think?
Sione
Published: March 25, 2007 1:33 PM
Sasha Radeta
Like I said:
Even many libertarians don't understand the basic purpose and meaning of trademarks and copyright -- so what can I expect from statist courts. Of course that your modification of their old and abandoned design would not cause either customers' confusion or any loss to BMW.
I don't agree with the court's decision against Infinity for example... but it only illustrates how far we are from common law, free-market reasoning.
The only way now is to present your car-kit idea to the manufacturer like BMW, tell them your production will be small (low impact) and simply swallow your pride and ask them for permission to materialize your design.
I know it makes no sense, but not too many things do nowadays. That's why I am anarcho-capitalist and against statist IP laws :)
Published: March 25, 2007 2:54 PM
Cosmin
Sasha, you said:
"If I own my book (paper and ink) - I can control the way someone uses it. I can contractually sell only limited uses of my book, while restricting other ones."
This is where the whole idiocy starts. You can not sell limited uses in this way. You can not sell a book for the limited use of being a paperweight and then call the buyer a trespasser when he reads the book. You can not sell a book for the limited use of reading and sue the buyer when he uses it to stomp out a fire.
Basically, what you're arguing is that one can own someone else's future actions through contract. That is slavery. (It doesn't matter if it's all future actions of that person, or just a small and insignificant one, it's still slavery.) Any slavery clause in any contract can be unilaterally voided at any time (even without needing to break the contract, now that i think about it in more detail).
Truth is, Sasha's position isn't pro-copyrights. Rights have an universal quality. Sasha isn't arguing that all ideas are uncopyable by their nature. She's merely arguing that the originator can decide whether his works are copyable, and that he has contracts at his disposal to impose his will. Hence, Sasha is actually arguing for the sanctity of contracts.
Let's look at that closer. Let's say I want to buy a gun and go hunting. The arms dealer sells me a gun only if I sign a contract saying I will not use it to hunt deer. (If I wanted to buy deer-hunting uses of the gun, it would supposedly cost me more, according to Sasha.) Well, I sign the contract, since I'm going duck-hunting anyway. That, and empty beer can-hunting. [Allow me to interject here a variable scenario (lost in woods, new plan by hunting mates, fortunate deer encounter) that takes me on a deer-hunting expedition.] If succesfull in shooting a deer with my gun, am I liable to be sued by the arms dealer? After all, it's in the contract!
My position is that even if I've "breached" that clause in the contract, I don't owe any compensation to the gunshop owner, since his clause was one that would control my actions contrary to my free will, and as such is tantamount to slavery. Such a clause is voided whenever I recognize it for what it is and refrain from granting it any power over me.
Sasha, continue believing that you can own someone's future actions through contract, but don't delude yourself into thinking you're advancing the cause of liberty.
Published: March 26, 2007 2:42 AM
Sasha Radeta
Cosmin,
Of course that you can sell specific uses of your property, just like you can rent it under specified conditions -- and I never said that the book-use purchaser can be called a trespasser as long as he uses that book in ways that he paid for (specified in contract). This has nothing to do with slavery. You don't have I right to use my property in any way you want to -- only I have that right.
If you pay for personal use of my apartment under the condition that your boyfriends are not going to spend nights there (imagine that the owner is gay basher who wants to make your stay unpleasant) - you will have to respect that contract as long as you live there -- or pay damages in cases of violations.
Your deer-hunting example only show your thinking disability (guns do have more expensive use -- and that use is replication, not the deer hunting... you could easily find examples insurance industry, but that's far beyond you), as well as total ignorance of contract law. Nobody is master of your body and nobody is forcing you to do anything. But if you decide to assume more expensive use of my property (and you even contractually acknowledge the price of such use in form of damages) -- you will have to pay it. It would be fraudulent to use someone's service at contractually agreed price -- and then to refuse to pay that price. It's that simple.
Damages expressed in copyrights cannot be interpreted as "owning someone's actions," as someone seriously challenged may assume. It is charging the valid price for used services. I hope this makes things little bit clearer for you (although I doubt it).
Regards.
PS
You can't seriously talk about anyone's "idiocy." Not after your insane statements about pure competition and void contracts. You are just not medically fit to give that call.
Published: March 26, 2007 3:28 AM
Sasha Radeta
When owners of rented apartments prohibit drugs and prostitution on their property, is that equivalent of "owning someone's actions?" Absolutely not. That's just restricting certain uses of your property (negative rather than positive rights).
And to take things outside of contractual issues: is putting a no-trespassing sign owning someone's future (trespassing) actions? Absolutely not. You don't have any free will and frredom of unrestricted action when it comes to use of my property.
Cosmin said:
That's communist "reasoning." You think that contract you signed is not yours -- but only "his" -- and that you have some inherent rights to use other people's property in any way you want to. You are so fortunate for the fact that you are incapable of understanding how much you humiliated yourself on this thread.
It's like trying to knock-down a punching bag. Cosmin, you're no fun.
Published: March 26, 2007 3:59 AM
rtr
You sure are slow Sasha Radeta:
"If I own my book (paper and ink) - I can control the way someone uses it. I can contractually sell only limited uses of my book, while restricting other ones. That's it."
Your book is physical paper with splotches of ink. It's impossible for your book to be copied because your book is always just a specific piece of physical pages with splotches of ink. Those specific physical pieces of paper with those specific physical splotches of ink can only not be "copied" if you were to outlaw every other existence of every other physical book with physical splotches of ink, no matter the immaterial non-ownable, non-authorizable meaningful content contained in patterns of words. That would mean only one book by one author could be in existence, assuming your ignorant notions of copyright were correct, which they are not.
Here it is copy + pasted for you.
Unfortunately for you, you've already agreed you can't own words or ideas. Thus, you cannot regulate its use contractually.
The only thing book publishers own is paper with splotches of ink. They don't own any words, any ideas, any content which may or may not reside in the physical material property. YOU'VE ALREADY AGREED THAT CAN'T BE PROPERTY. You've lost.
The only thing you can regulate, the only thing you can authorize, the only thing you can transfer title to, the only thing you can contract the use of, is of a physical material object. In the case of a book, that would be the existence of any other books with pages and splotches of ink, no matter the content. Got that stupid? See how absurd that would be?
The ideas/words/sounds content is irrelevent, is not ownable, is not subject to any valid contract, is not subject to any "use" authority. Got that stupid?
Did you get it now, this time?
Published: March 26, 2007 10:51 AM
Cosmin
Sasha, you still can't read, can you?
"I never said that the book-use purchaser can be called a trespasser as long as he uses that book in ways that he paid for (specified in contract)."
In my example, the contract specified that he could only use the book as a paperweight. When he reads the book, he uses it in ways that he didn't pay for. According to you, that makes him a trespasser.
"guns do have more expensive use -- and that use is replication, not the deer hunting..."
No, according to you in a previous statement, that use can be anything that the original seller wishes. To quote you:
"If I own my book (paper and ink) - I can control the way someone uses it. I can contractually sell only limited uses of my book, while restricting other ones."
So in my example, the gunshop owner restricts certain uses of the gun, such as deer-hunting, as is his prerogative, according to your doctrine. Why then did you evade instead of addressing the argument?
Or, are you now arguing that deer-hunting is NOT a type of use that the original seller can restrict? (As opposed to replication, which he can.) Are you the arbiter of what uses are restrictable and which other uses are not?
Furthermore, I don't see how replication of an object can be considered as an use of that object, unless it has self-replicating capabilities.
In order to replicate an object, you have to have materials. You find some that don't belong to the seller of your device. Those aren't under the control of the device's originator.
Then, you have to use your labor. That isn't under the control of the device's originator, outside of a slavery situation.
Then, you have to have an idea of the device youre replicating. This idea is under the control of the device's originator, but it is not his property. When you buy his device you make use of it. Durning the course of your use of the device, the idea of how the device functions arises in your brain. The device's originator has no control over the idea that you find in your brain.
Sasha's brilliant argument is that the original seller, having anticipated that you'd acquire an idea of the mechanism of his device through its use, has imposed on you that you alienate your right to use the idea in your brain in exchange for the opportunity to acquire the idea in your brain in the first place.
The problem here is that noone can give away the ability to acquire ideas, no more than they can give away the ability to understand speech. So if they can't give it away, why would they give up the right to use said idea in exchange for retaining the right to acquire it? This is why I don't see how these types of transaction would survive in a free market.
Also, I don't see how someone can give up the right to use an idea from his brain, and not have that situation be called slavery. This is why I don't see how this type of clause in a transaction would be enforceable, if it even existed.
Here, Sasha decide to muddle the issue, with inflammatory rhetoric:
"That's communist "reasoning." You think that contract you signed is not yours -- but only "his" -- and that you have some inherent rights to use other people's property in any way you want to."
I'm using other people's property? I told you what I'm using: bought materials, my own labor, the idea of the device. That's it. Which one of these is "other people's property"? Is it the idea of the device? Silly me, I thought ideas couldn't be property. So where is this "other people's property" that I'm using?
Published: March 26, 2007 3:01 PM
Sasha Radeta
RTR,
I'm not slow. You're just not very fond of using your grey cerebral matter. If I own physical book, that implies that i can legally control its use. Anyone who derives any service without my permission is trespassing, based on definition of ownership. In other words, I can exclude anyone from reading it, scanning it, or enjoying whatever service from it...
I can prove that someone used my book without permission based on unauthorized copies. It would be rather easy for Hans Hermann Hoppe to prove whether someone replicated his work: word-for-word.
If you can prove to court that you made an identical book, without unauthorized use of my book -- more power to you. Almost everything you wrote seems like a psycho-babble, so I'm not going to torture myself by reading it.
I mean, look at this idiocy:
-----
Cosmin,
You poor guy. You suffered so much on this thread. That's why I'll be gentle now.
I certainly addressed you deer-hunter example (although I commented its silliness as an illustration of your modest capabilities).
Anyway -- if we contractually agree that a certain use of my item costs more -- like using a rented car in street races... If you use my property in such way you will owe me the payment of that price. It's that simple.
As far as replication goes, of course that you need something more than just your material.... You need a template (original work that you want to copy).... if you obtain that object under the condition that you will pay damages for any template (replication) use -- that's the price you agreed to pay for such use. And stop referring to slavery, you are insulting African-Americans. it is not slavery when you agree that certain amount of damages will belong to the author if his property is used in a certain way.
PS
I'm happy if you finally learned something about voidable contracts and output decisions in a pure competition. :)
Published: March 26, 2007 5:03 PM
rtr
Sasha Radeta:
"Anyone who derives any service without my permission is trespassing, based on definition of ownership. In other words, I can exclude anyone from reading it, scanning it, or enjoying whatever service from it..."
You can only exclude people from reading your book by not trading it to them, or renting it to them. You're insane if you think you can declare nobody can look at you or listen to what you say "without your permission", or repeat what you say (in any form whatsoever).
Sasha Radeta:
"I can prove that someone used my book without permission based on unauthorized copies. It would be rather easy for Hans Hermann Hoppe to prove whether someone replicated his work: word-for-word."
You've already declared ideas/words can't be owned. Hans Hermann Hoppe's "work" in a book is words/ideas/immaterial intellectual content which he can't exclusively own unless he keeps it to himself in the first place. You're stupid, plain and simple. How many replies now have you contradicted your statement that ideas are immaterial things which can't be exclusively owned?
What about the existence of books by different authors? They've copied each other's physical paper pages with splotches of ink form without permission from anyone. You can't even own the physical form of a book, let alone any immaterial "work"/ideas/words contained within a book. Got that stupid? So who's in violation of the book form? You're copying someone with every word you write. Are you writing in your exclusive gibberish understood by nobody except you?
You can't own any words. You can't own the form of a book. You've got no ownership of ideas with which to restrict anyone's actions by contract. It's as absurd to think you can enforce a contract against copying content as it is to think you can enforce a contract barring someone from breathing air. You can only do so by violent coercive offensive force.
Sasha Radeta:
"I am the owner of my book with its own specific patterns of ink. If you use it and replicate it without permission, your trespass will be easy to prove in court."
You don't own any content. You don't own any specific patterns of ink. You've already stated you agree so, stupid. You can't make contracts restricting use of things you don't own. Nobody can use your book without you by definition giving permission to its use by making it available. You are literally the Emperor with no clothes.
Not to mention, but if someone added there own signature, or an extra period, or a smudge, the specific patterns of ink would no longer be identical. Now you're defeated on the entire spectrum of unique exclusive ink splotch content if any two authors have any specific words or letters in common if you object that an an extra smudge is not a specifically different ink pattern. You're defeated on the entire spectrum of any two authors having the smallest form of ink splotch imaginable upon a page. Do you get how absurd copyright is now stupid?
Me smarter than > you.
Go ahead. Serve yourself up for further humiliation. I suppose you can take solace in that you are participating in a process of explanation simplification. I like sharpening it up in the lab with feedback before unleashing it to change the perceptions of the world one mind at a time. I want the slow minds to get it too eventually. That's the power of truth.
Published: March 26, 2007 8:18 PM
Cosmin
Sasha, dismissing something is not the same thing as adressing it. You write so much, yet never adress any argument brought up. I thought you were a huge waste of time, but now I realize that you're a complete waste of time.
Also, stop swithcing situations around to make them fit your babble. Specifically, you said:
"As far as replication goes, of course that you need something more than just your material.... You need a template (original work that you want to copy)...."
You don't need a template. You need an idea. The idea may have come while using the original device, but that doesn't mean it's now property of the device seller.
Also, I didn't know the concept of slavery was the exclusive property of "African-Americans". People of all races have been slaves and not all Blacks have been slaves. And other Blacks have been slaves without being in America. You're the one insulting Nature by being so retarded.
Published: March 26, 2007 10:33 PM
Sasha Radeta
RTR now completely lost his temper. He got upset over his inability to even think of a decent analogy. Besides calling me "stupid" a dozen times and talking gibberish, there is almost nothing in his post. There is probably white foam coming out of his mouth.
He is even proud of his ignorance of the basic contract law (I'll get to his ignorance of basic economics on another thread).
I can certainly avoid unwanted use -- even after I trade my good's services to someone. For example, I can rent you my car at one rate, but our contract can specify damages if you use that car in street races. Also, I can sell you health insurance at one rate when you state that you are not smoker, but if you get caught smoking you will pay specified increase in coverage.
When you accept that certain service will cost you a contractually specified amount of money -- you will have to pay that price after you use it.
When it comes to use of books -- if I contractually agree with Dr. Hoppe that using his book for reproduction will cost me a certain amount of damages -- I'll have to pay that amount.
If I claim my innocence and point to a change of "patterns in ink" as RTR idiotically suggests, the court will laugh at me. They will simply state that Dr. Hoppe does not own a specific pattern. He owns a book which I agreed not to replicate -- and they can prove that I did that beyond reasonable doubt.
Copyrights are not about "owning a pattern" -- it's about owning physical property that is unique and proving whether someone used in ways he did not pay for... Trespasses (unauthorized use) when it comes to book-replications are probably easiest to prove.
Do you understand now why I said that you can't own a pattern, my poor handicapped friend? You completely misunderstood Rothbard's reasoning behind copyright.
Published: March 26, 2007 10:49 PM
Sasha Radeta
Cosmin,
Unfortunately you were not intelligent enough to understand that African-American reference was a joke. Where do you think I come from… Tsk, tsk, tsk…
You said:
"You don't need a template. You need an idea."
But poor Cosmin, what if someone shares your level of intelligence and is unable to come-up with anything useful. I'm talking about people like you, who are (due to the cruelty of Mother Nature) forced to use someone else's property in ways they did not pay for. I may feel sorry for you -- but if you use someone's property as a template for replication -- and your contract stated that such use will cost you the X amount of dollars -- you will legally owe that amount.
Best regards.
Published: March 26, 2007 10:56 PM
rtr
Sasha Radeta:
"I can certainly avoid unwanted use -- even after I trade my good's services to someone. For example, I can rent you my car at one rate, but our contract can specify damages if you use that car in street races. Also, I can sell you health insurance at one rate when you state that you are not smoker, but if you get caught smoking you will pay specified increase in coverage."
You can rent your car because you can *own* your car, because your car is physical material property. You can do nothing to prevent someone looking at you, listening to you, repeating everything you say or do like a parrot, whether verbally, written, or any form whatsoever. We have the right to mimic, to copy. It's called freedom to do with our own bodies and property what we please. There's nothing you can say or write or think which can't be said or written or thought by another.
If you want to be laughed at, go to a public square and declare that nobody can say what you are saying without violating your use ownership contract. But yet you think you can do the same thing in a written book? Your book property doesn't extend into ownership of someone's mind or actions. Your book can be copied without ever being physically touched by somebody, let alone in "stolen" possession, let alone in "violated contract".
Sasha Radeta:
"If I claim my innocence and point to a change of "patterns in ink" as RTR idiotically suggests, the court will laugh at me. They will simply state that Dr. Hoppe does not own a specific pattern. He owns a book which I agreed not to replicate -- and they can prove that I did that beyond reasonable doubt."
I see more books out there than just one book by Dr. Hoppe. Those are additional copies of books, no matter the non-ownable specific patterns of ink or meanings in them. You see dummy? Every single book out there not made by Hoppe is a copy of a book.
I could write a book that consists entirely of the letter "A" and nothing more. It would be absurd to claim copyright on the letter "A", to use violent force to prevent all uses without permission of the letter "A". So I can own the entire English language by writing a series consisting of one letter from "A" to "Z"? That must necessarily be true for any copyright of written words to be valid, dummy.
Sasha Radeta:
"Copyrights are not about "owning a pattern" -- it's about owning physical property that is unique and proving whether someone used in ways he did not pay for... Trespasses (unauthorized use) when it comes to book-replications are probably easiest to prove."
There's nothing "unique" about a book with paper pages and splotches of ink on them. All books are paper pages and splotches of ink on them. Yup, you're trying to claim contractual use ownership over something you don't own, you've agreed you don't own; meaningful content.
YOU CAN'T MAKE CONTRACTS ON THINGS YOU DON'T OWN!
As the reader can see, libertarian contract theory is fundamentally flawed.
Published: March 26, 2007 11:34 PM
Fred Mann
Sasha writes:
"Observing DVD's content is its use (service derived). The fact that you observing it via your computer is really not the issue, since it's the same as if you did it directly with your eyes. Trespass does not have to be a direct invasion of property -- but it is an unauthorized use."
In order to have trespass, the third parties must be using the physical item itself without authorization, and not simply observing. As I have already noted, MR. SMITH IS THE ONLY ONE USING THE *PHYSICAL DVD* . The fact that everyone on earth can simultaneously observe the transmission from the DVD does not change this fact. In this instance, we are talking about non-rivalrous "use" of the broadcasted SIGNAL generated from the DVD. This signal is non-physical, non-scarce, and not owned/ownable. Therefore, viewing of the transmission is NEVER going to be trespass as long as no physical invasion (or hacking) is occurring. If the third parties were actually ALL simultaneously using the PHYSICAL DVD (which is the ONLY thing that is owned and could be trespassed upon), then they could ALL be stopping, starting, and even transporting the physical DVD to a place of their choosing -- all at the same time!!! This is impossible. Only Mr. Smith can do this, because he is the only one using the physical DVD. So, of all the aforementioned parties, Mr. Smith is the only one in CONTROL of the services of the DVD.
This whole thing is analagous to a situation in which you walk out in public and then claim people are using your person without authorization when they take your picture. But this is mistaken. You do not own your image (light reflected off of your body), or transmissions, etc..... Hopefully it is now clear that there is no trespass on anything physical or owned, and hence no tort is possible.
Interestingly, with something like a dance DVD, the WHOLE POINT of watching it is to replicate the moves in public. So agreeing to a copyright contract (no matter how strict or lenient) would be self-defeating for the viewer. This is true for all performance-related material.
Published: March 26, 2007 11:39 PM
Sasha Radeta
And you claim that books are not physical, material property?!
I can absolutely contractually regulate how someone uses MY book (my property) – and so it happens that it is really easy to prove whether someone replicates my work of authorship without my permission.
RTR demonstrates his ignorance of how contracts are formed by saying:
Oh geez… Should I even comment this one…What the heck. You even had worse ideas.
RTR, Contracts are not formed by someone shouting at the crowd. First of all there must be some evidence of agreement to terms of exchange of some goods and services. Secondly, if there is such agreement between parties, seller must be able to prove that someone violated his terms of use (like with unauthorized replications). In case of books, it is relatively easy to prove whether such violations took place, because you can show to court your original work and compare it to the copycat.
Dummy? You mean: a person who is stupid enough to realize that the author can have co-ownership rights with his publisher. That would mean that every single copy of Dr. Hoppe’s work is someone’s property – and that owner has an absolute right to sell you only restricted use of his property, while retaining those expensive publishing rights for himself. If you decide to enjoy those expensive uses, you will be legally liable for the price of such use (damages).And the culmination of RTR’s nonsense came with this:
Is that how you comfort yourself before you go to bed – by saying that your “splotches” of ink are equal to writings of people like Dr. Hoppe? Blessed are the poor in spirit (euphemism), for theirs is the kingdom of heaven. That’s another one for you :) You feel better now?
Of course, intelligent people are able to find difference in ink patterns between incoherent ramblings like RTR’s postings and Dr. Hoppe’s writings. It would not be difficult to prove whether someone like RTR used Hoppe’s book without his authorization, just by looking at these meaningful ink patterns as material evidence.
I see that RTR in his ramblings and ravings switched to Mr. Smith and DVDs all of the sudden. He still has a hard time with concept of “use” (putting into service) – and the fact that owners can legally control services that can be derived from their property.
As I explained before, If Mr. Smith broadcasts a DVD over the internet – he will have to pay for expensive broadcasting rights that take into account the extent of financial injury caused by such act. As far viewers over the internet go, they were not in “control” of the DVD – but they used the service that was derived from that DVD – and unauthorized use is called trespass.
RTR insists on “control” issue (he even emphasizes that), simply because he tries to misinterpret Dr. Kinsella’s argumentation on why sending spam e-mail is nothing but a trespass. Anti-IP advocate, Dr. Kinsella, claims that it is a trespass if you force unwanted information onto someone else (like forcing someone to hear something unpleasant, thereby creating changes in that person’s brain and physiology in general)…. When thinking about it, I actually support only his case against spyware, because it allows someone else to use your property. What is really impotent is that Dr. Kinsella says:
Apply this statement to Mises's definition of ownership and the DVD scenario. It is the owner’s right to control all services that can be derived from his good and its normal use (derived service) is watching its content.
Anyway, Mr. Smith violated his terms of use and copyright contract will be enforceable. When it comes to third party trespasses, it will always be too complicated for you.
Published: March 27, 2007 12:35 AM
Sasha Radeta
Oh, sorry... I confused Fred and RTR... They sound so similar.
:))
When it comes to performance related material (like martial arts lesions or dance lesions) -- of course that content-related restrictions would never be even proposed by their authors. Because, what would be the point of buying such material...
This is not the case with other types of DVD.
Published: March 27, 2007 12:41 AM
Sasha Radeta
Anyway Fred,
Sorry about the mix-up, I said I don't read everything RTR writes and I quickly glance over it.
Question for you:
Do you now finally agree that Mr. Smith in your example is violating an enforceable contract by broadcasting that DVD over the internet -- and that he is liable for damages specified by that contract?
We'll never reach consensus regarding the definition of "use" (services), since you choose not agree with Mises (and his definition actually explains how people actually charge people for viewing their films over the internet -- and why these contracts are legally enforceable, since they legally control that service) -- but I think that it is important to finally hear you now about copyright contracts.
Published: March 27, 2007 12:55 AM
Fred Mann
"Do you now finally agree that Mr. Smith in your example is violating an enforceable contract by broadcasting that DVD over the internet -- and that he is liable for damages specified by that contract?"
Sure, I think this is fine. I think two parties can make any contract they want, whether it means one of the parties agrees to do something, or to REFRAIN from doing something.
But the main problem with your scheme, as always, lies with the third-party situation. I think I explained it fairly well above. The third parties in the examples above are simply NOT trespassers. Maybe it will help to expand on my analogy?...
If you walk out in public and I take your picture, it is certainly true that you did not authorize me to do so. In that sense the pictures I take are "unauthorized". But here is the key ... NO AUTHORIZATION IS NEEDED!!! Once you make it possible for me to view your person from public property or from my own private property, I do not need permission to photograph you, paint you from memory, or describe you in detail to my friend. This is EXACTLY the same position that the third party viewers are in in our recent examples (i.e. Mrs. Smith or the viewers of the internet broadcast/transmission). It is literally IMPOSSIBLE for me to trespass with my vision, as long as I am standing on public property, or on my own private property (hacking and the like excepted). And this is true whether or not the thing I see was designed to be seen or not (i.e. whether its "normal use" involves being looked at).
The control you have over the services of a DVD (otherwise known as a transmission or broadcast) is limited to allowing or disallowing access to said service. The end. Anything beyond this would be tantamount to claiming ownership of the "service" itself, which you have already rightfully rejected.
And again ... if these third parties are NOT trespassers, then your copyright scheme will easily fall apart.
Published: March 29, 2007 12:41 AM
Sasha Radeta
Fred,
If you agree that in Mr. Smith's scenario we have a responsible party (who should legalize his actions by paying whatever it normally costs to broadcast a film over mass media -- plus some punitive damages)... then the issue of third parties is not so important. You may argue that once Mr. Smith's gets his obligation to pay, that will be like a normal market exchange between him and a DVD company.
We still disagree on what constitutes "use" - and Rothbard would as well. Your paparazzi example does not illustrate something that we must agree on. Actually -- I don't think they should make money by using someone else's body, without that person's authorization. I don't think that's any more radical than Dr. Kinsella's opinion that spam e-mail (information) is a trespass because it causes computer to record it, hence causing changes in it (I guess that I am trespassing against you right now, and you can have a tort case because now you agree with contractual copyrights, in spite of our differences when it comes to tort / third parties : )
Regards
Published: March 29, 2007 1:49 AM