Comments (98)

• Silas Barta

  Any of these folks attempted to resolve their opposition to IP with their support for EM spectrum rights?

  Any of them even aware of the contradiction? "You can own the right to emit at 600 kHz (radio wave), but not the right to emit at 400 THz (the color red)."

  Didn't think so.

  Published: August 26, 2009 3:30 PM

• Caveman

  Silas, if/when Kinsella drops his support for EM spectrum rights, what then?

  Published: August 26, 2009 4:05 PM

• Silas Barta

  Caveman: Then he resigns himself to permanent crankdom. He'll just be known as the guy who doesn't believe in communication via radio waves. And he'll take take whoever follows down with him.

  Published: August 26, 2009 4:54 PM

• Martin

  Thanks for pointing this out, I'll pick up a copy while in the states next month.

  Published: August 26, 2009 5:12 PM

• Toby

  Could anyone of the IP-opponents please answer following question:
  Assume that in order to discover medicament X you need to invest $100 million. The production of one unit costs $5, but to get the R&D costs back, one needs to charge at least $20 per unit.
  Now, without any patent laws, the competition could just copy the product and offer it for a much lower price like $8 per unit. Why then should any company conduct cost-intensive R&D?
  Thank you for every answer!

  Published: August 26, 2009 5:42 PM

• Caveman

  Toby, click on the link to "Other posts by Stephan Kinsella" and you'll find many responses to questions such as yours both in the posts themselves and in the comments to the posts. The IP debate is one of the more entertaining among libertarians. At least it is until it devolves into "You're an IP socialist," "No, you're an IP fascist." At that point, you can just stop reading. Have fun!

  Published: August 26, 2009 6:50 PM

• RWW

  Silas: Stephan is wrong about the EM spectrum (and a lot of other things), but right about IP.

  Published: August 26, 2009 7:55 PM

• BioTube

  Toby, the company would need to take more care to use technological protections of trade secrets and would need to do its best to establish itself before competition could arise.

  Published: August 26, 2009 8:23 PM

• Caveman

  Stephan is wrong about the EM spectrum

  RWW, I guess that makes you the "guy who doesn't believe in communication via radio waves." ;)

  Published: August 26, 2009 8:39 PM

• Russ

  Silas Barta wrote:

  "Any of them even aware of the contradiction? "You can own the right to emit at 600 kHz (radio wave), but not the right to emit at 400 THz (the color red).""

  If somebody broadcast at 400 THz, wouldn't he blind people, or at least cause really annoying and possibly dangerous light pollution? Wouldn't that make the case against broadcasting at 400 THz?
  

  Published: August 26, 2009 8:47 PM

• Russ

  Toby wrote:

  "Why then should any company conduct cost-intensive R&D?"

  As you framed the question, obviously, they shouldn't. However, the reason companies currently spend so much on researching synthetic drugs is because natural drugs cannot be patented. So in many cases, without IP, natural substances might be sold as functional replacements for synthetic ones. Also, it's quite conceivable that companies could form consortiums to split the cost of research, and then try to make their profit by, oh, I dunno, making their manufacturing processes more efficient than the other companies?

  Published: August 26, 2009 8:54 PM

• Stephan Kinsella

  RWW: "Silas: Stephan is wrong about the EM spectrum (and a lot of other things), but right about IP."

  RWW, if I'm wrong about the EM spectrum, what exaclty is my position on it that is wrong? If I recall, I've only sketched out a tentative position on this.

  Published: August 26, 2009 9:09 PM

• Nuke Gray

  Toby- Your question is not hypothetical. Viagra is a product of our patent system. I asked Mr.Kinsella about this once, on a similar topic, and his answer then did not convert me to his case. Let's see what he does here, if anything!

  Published: August 26, 2009 9:51 PM

• Silas Barta

  @Stephan_Kinsella:

  RWW, if I'm wrong about the EM spectrum, what exaclty is my position on it that is wrong? If I recall, I've only sketched out a tentative position on this.

  Ding ding ding! Yes, Stephan_Kinsella, you haven't sketched out a position on it, because you know pretty well that you've painted yourself into a corner, where you either have to endorse IP or reject EM spectrum rights. But hey, as long as you don't have to actually spell out the implications of your beliefs, you can go on believing contradictory positions as long as you want! Cognitive dissonance rocks!

  @Russ:

  If somebody broadcast at 400 THz, wouldn't he blind people, or at least cause really annoying and possibly dangerous light pollution? Wouldn't that make the case against broadcasting at 400 THz?

  Um, no, you're "broadcasting at 400 THz" as soon as you wear something red.

  Published: August 26, 2009 10:17 PM

• David Koepsell

  I actually use EM spectra as an analogy to genes in Who Owns You?, arguing that both are unencloseable "commons by necessity." This implies that monopolies over either are unethical, and ungrounded. One saving grace of EM spectra monopolies is that they are extremely local, in most cases. It's an excellent point, though, and I think it's important to be consistently opposed to governmentally supported monopolies as inefficient and unethical.

  Published: August 27, 2009 12:04 AM

• Peter

  OFFS; can't Silas-the-IP-obsessed-troll be banned or something?

  Um, no, you're "broadcasting at 400 THz" as soon as you wear something red.

  And nobody has a problem with someone "broadcasting" at any frequency they like, if that's all you mean.

  Published: August 27, 2009 12:42 AM

• FTG

  Silas,

  An EM frequency can be homesteaded by using a bigger transmitter than your rival. Your rival can then choose to use a different frequency. The EM Spectrum cannot be compared to IP because IP deals with ideas, which are non rivarlrous, non physical, unlimited elements (the EM Spectrum IS a physical phenomenon with a physical limit). I really do not see what purpose it serves to keep repeating the same argument over and over. The designation of EM rights by the government is just as arbitrary as assigning water rights, both coming from the same principle of resource allocation, yet you do not use water rights as an example to argue in favor of IP, regardless of the fact that IP is just as arbitrary as government-mandated water rights.

  "Um, no, you're "broadcasting at 400 THz" as soon as you wear something red."

  Thus the analogy falls apart as an argument in favor of IP. If I can transmit by wearing red and anybody else can wear red without rivalry, then I see no point in using EM as an example that helps justify IP.

  Published: August 27, 2009 12:54 AM

• FTG

  Assume that in order to discover medicament X you need to invest $100 million. The production of one unit costs $5, but to get the R&D costs back, one needs to charge at least $20 per unit.
  Now, without any patent laws, the competition could just copy the product and offer it for a much lower price like $8 per unit. Why then should any company conduct cost-intensive R&D?

  Why would R&D be cost intensive, in the first place? I do not see how you can justify IP by question-begging.

  Even if the development of a new drug amounted to that much, the process itself is capital intensive - a competitor would have first to reverse engineer the drug, then would have to design the process, invest in the equipment and machinery for production and then offer the product in the market as an alternative. That is very costly - the original developer of the new drug has by itself several years of head start as it is, because along with the new drug it would have the design of the process already figured out, most likely already having the equipment to go into full production, with only few modifications, whereas a competitor would have to start from scratch. Then there is the problem of the public trusting the substitute. The original maker can always ramp up production and/or lower its costs to compete with the rival, again having a good head start in this as it has created already the raw material and supplier network. Really, the only reason to justify patents is to "protect" the developer of the new drug during the protracted period of testing as required by the FDA, but that would mean that, at least as drugs are concerned, the ONLY justification for the existence of patent laws is the existence of the FDA (a circular argument!)

  Published: August 27, 2009 1:21 AM

• Russ

  Silas Barta wrote:

  "Um, no, you're "broadcasting at 400 THz" as soon as you wear something red."

  
  Um, no. :-P

  When you wear something red, you're not broadcasting at all. You're wearing a shirt that happens to *reflect* light of the color red, and absorb other colors. The "broadcasting" is done by a lightbulb, or by the Sun. Wearing a shirt that happens to reflect a given color does not give you property rights over the light frequency, any more than owning a metal barn that reflects radio waves gives you rights over the radio frequency.

  BTW, I could be wrong, but right now I agree with Stephan on this one. I see no reason why ownership of radio spectrum implies IP. The two seem, on the face of it, completely unrelated. You'll at the least have to do better that the "wearing red" argument. First, it's easy to slap down, and second, I don't see how it pertains to IP at all.

  Published: August 27, 2009 6:29 AM

• Russ

  FTG wrote:

  "Even if the development of a new drug amounted to that much, the process itself is capital intensive - a competitor would have first to reverse engineer the drug, then would have to design the process..."

  This is true. Even if a competitor were able to reverse engineer the drug (that is, discover exactly what molecule the drug is comprised of), he would also have to discover how to synthesize the moelecule. Knowledge of molecular make-up of a drug does not imply that one knows how to synthesize it. And even if one did know how to synthesize it, there is no guarantee that one would discover the most efficient way of doing so. And even if a competitor did discover the exact same way of synthesizing it, there is still no guarantee that he could compete, because the original manufacturer might have access to cheaper equipment, cheaper labor, cheaper chemical ingredients, etc.

  Published: August 27, 2009 6:45 AM

• Silas Barta

  @Russ:

  When you wear something red, you're not broadcasting at all. You're wearing a shirt that happens to *reflect* light of the color red, and absorb other colors. The "broadcasting" is done by a lightbulb, or by the Sun.

  O...kay, and when you have a radio transmitter, I guess you're not broadcasting then either. You're propping up a tower that *happens* to oscillate at the frequency 600 kHz. The "broadcasting" is done by its electricity source.

  Distinction, yes, difference, no.

  Published: August 27, 2009 7:16 AM

• Matthew

  Silas,

  You're the one who can't see the difference between IP and the EM spectrum. Why don't you spend at least 5 minutes trying to understand the difference that other people can see there before going on and on and on?

  (And on and on and on and on and on....)

  Published: August 27, 2009 7:23 AM

• Russ

  Come on, Silas. A radio tower generates radio waves. A red shirt does not generate light waves; it *reflects* them. This is a real difference. By your logic, doesn't an owner of a metal barn thus have rights to the EM spectrum that his barn reflects? That seems non-sensical.

  But even if I say that a red shirt does generate light waves, for the sake of argument, so what? I still don't understand how this relates to IP. I am seriously curious; please explain.

  Published: August 27, 2009 7:31 AM

• Russ

  FTG wrote:

  "An EM frequency can be homesteaded by using a bigger transmitter than your rival. Your rival can then choose to use a different frequency."

  I disagree. This is analogous to saying that I can homestead land, and then someone else could homestead it away from me by shoving me off of it. That's not what "homesteading" means.

  Published: August 27, 2009 7:48 AM

• Silas Barta

  @Russ:

  Come on, Silas. A radio tower generates radio waves. A red shirt does not generate light waves; it *reflects* them. This is a real difference. By your logic, doesn't an owner of a metal barn thus have rights to the EM spectrum that his barn reflects? That seems non-sensical.

  Yeah, it sure does seem non-sensical, that's the point. Just as it's non-sensical to claim the portion of the EM spectrum that your radio tower "reflects". Just as a red shirt returns waves from a subset of those that hit it, a radio tower returns waves from a subset of those that hit it (with some amplification).

  Indeed, how can you claim the exclusive right to emit 600 kiloHertz (a radio wave), but not 400 terraHertz (the color red)? You tell me.

  But even if I say that a red shirt does generate light waves, for the sake of argument, so what? I still don't understand how this relates to IP. I am seriously curious; please explain.

  You mean, explain a third time on this thread? Sure thing!

  When you claim ownership of IP, you're claiming the exclusive right to instantiate a pattern. You're doing the same thing when you claim ownership over a portion of the EM spectrum, such as the frequency 600 kHz, because you're claiming the exclusive right to form EM waves around that frequency, another kind of pattern.

  And before you're the 6000th person to "innovatively" respond, "but EM waves *interfere* with other EM waves!", just take a deep breath, and read this post.

  Published: August 27, 2009 8:49 AM

• Buzungulus Rising

  I continue to be amazed at what a thick-headed stooge Silas Barta is.

  Published: August 27, 2009 9:47 AM

• Peter Surda

  @Silas Barta:
  > Just as a red shirt returns waves from a subset of
  > those that hit it, a radio tower returns waves from a
  > subset of those that hit it.
  Uh, so the fact that a radio tower is connected to a transmitter has absolutely no effect on ownership, homesteading and exercising of rights? A very strange notion indeed.

  > Indeed, how can you claim the exclusive right to
  > emit 600 kiloHertz (a radio wave), but not 400
  > terraHertz (the color red)? You tell me.
  The problem isn't that one cannot claim the right to 400 THz. If EM rights are recognised, then I see no theoretical problem with claiming 400 THz as well. The reasons why this doesn't/wouldn't happen are that
  - the potential claimant would need to persuade others (s)he has homesteaded it. In other words, one would need to claim that (s)he is the first person to show a red object in that area. Quite difficult to achieve.
  - visible light is stopped very easily, e.g. by walls. There is no pratical point in exercising your right to show red through walls or around corners.

  To summarise, I see no theoretical hinderances, it merely appears useless to me to have such right beyond the area of the land or buildings you own. But I have no objections.

  > When you claim ownership of IP, you're claiming
  > the exclusive right to instantiate a pattern.
  Here we go again. The term "exclusive right" has at least two different meanings. Unless you clarify, your argument is only adding to confusion.

  To clarify: IP laws do not give the owner the right to instantiate a pattern, they merely give him the right to sue others should they attempt to do so. The right to instantiate a pattern is given to the owner by (classical) proprety rights.

  > You're doing the same thing when you claim
  > ownership over a portion of the EM spectrum,
  > such as the frequency 600 kHz, because you're
  > claiming the exclusive right to form EM waves
  > around that frequency, another kind of pattern.
  I see at least two differences.

  First of all, IP has unlimited scope (i.e. whole universe as was pointed in an article a while ago), EM rights are regionally limited (in different areas, EM spectra can have different owners).

  Second of all, EM rights are based on the right to use and right to trade (other participants might interfere with your exercising of those rights). There is no equivalent interference in IP. They might "interfere" with your profits, but not with anything you own.

  Published: August 27, 2009 10:21 AM

• Stephan Kinsella

  Silas, there is a huge difference between IP and EM rights. In EM rights, if you recognize them, the idea is that when you transmit EM waves over a given physical volume of space, you are the first to use that particular volume in that way, so you homestead that right.

  By contrast, there is no way to make such a claim for IP. If I configure my own metal and plastic into a new vacuum cleaner, that is not some use of others' property over all space, that gives me the right-to-imprint-that-pattern on their own property.

  Analogy FAIL.

  Published: August 27, 2009 10:27 AM

• Silas Barta

  @Stephan_Kinsella: Why does transmitting the information contained by EM waves over that volume of space constitute "using that particular volume in that way", while transmitting the information contained by the new vacuum cleaner over the surrounding area *does not* constitute "using that particular volume in that way"?

  In both cases, the relevant transmission is over the information, not necessarily any kind of "wave". Remember, you only consider radio waves scarce in terms information transfer capacity. Trivially, everyone could broadcast at the same frequency, they just wouldn't transmit any information.

  In both cases, someone is claiming the exclusive right to form and transmit a pattern of information. In one case, you support the right, and in the other, you don't. Why?

  @Peter_Surda: Others and I addressed your points before, and I'm not going to bother trying to get through again.

  Published: August 27, 2009 11:31 AM

• Russ

  Silas Barta wrote:

  "Just as a red shirt returns waves from a subset of those that hit it, a radio tower returns waves from a subset of those that hit it (with some amplification)."

  A radio tower doesn't return waves that hit it. A radio tower generates waves. The waves *originate from* the tower. The red light waves do not *originate from* the shirt; they originate from a light bulb or the Sun.

  But all that, while I believe it is technically correct, is also unimportant. What I believe it important is as follows...

  "Indeed, how can you claim the exclusive right to emit 600 kiloHertz (a radio wave), but not 400 terraHertz (the color red)? You tell me."

  You can claim exclusive rights to a portion of radio frequency spectrum because, by the nature of the radio spectrum, exclusive control in a given geopraphic area is required to make it useful. You can't claim exclusive rights to the color red, because you don't need exclusive ownership of the color red to make a red shirt useful.

  To clarify, homesteading is used to claim ownership of some things, yes. But that does not imply that *all things* are "homesteadable". Homesteadability only reasonably applies to those things that require exclusive control in order to be useful (such as land or EM spectrum), not those things that don't (such as software or the color red).

  "When you claim ownership of IP, you're claiming the exclusive right to instantiate a pattern. You're doing the same thing when you claim ownership over a portion of the EM spectrum, such as the frequency 600 kHz, because you're claiming the exclusive right to form EM waves around that frequency, another kind of pattern."

  Your concept of instantiating a pattern is interesting, but I believe that another concept is required. That is the concept of *medium*. A pattern cannot be instantiated without a medium. When you claim ownership of EM spectrum, for instance, you are claiming the right to exclusive control of the *medium*, which implies that you and you alone can instantiate any pattern on that medium. When you claim ownership of software, for instance, you are claiming the right to exclusive control of the *pattern*, which implies that you and you alone can instantiate that pattern on any medium (be it EM spectrum, a computer disk, a length of string... or a shirt *grin*). Once again, EM spectrum ownership claims exclusive control of the *medium*; IP ownership claims exclusive control of the *pattern*. The two claims are categorically different. Hence, as Stephan pointed out, any analogy between the two fails.

  As a matter of fact, I think the concepts of pattern and medium clarify why IP is not justified. If I claim ownership of a string, for instance, I claim the exclusive right to control it. This claim would imply that I have the exclusive right to instantiate any pattern using said string. If you claim ownership of a pattern of 1's and 0's, you are claiming the exclusive right to instantiate it. This claim would imply that I cannot rightfully use my string to instantiate your pattern, which I could do by tying knots in the string. Your claim to exclusive control of the pattern interferes with my claim to exclusive control of the string. Hence, the two claims are incompossible. In a nutshell, IP rights interfere with real property rights.

  Published: August 27, 2009 11:40 AM

• Michael A. Clem

  Silas seems to be confusing the medium (EM freqencies) with the message. I understand art critics sometimes have the same problem! ;-)
  
  Look instantiate the pattern of an EM frequency all you want--no one can directly experience that pattern like they can view your painting or t-shirt, or hear that song. The receiver is necessary to turn those frequencies back into music or a talk show or whatever you happen to be broadcasting. Furthermore, radio broadcasts don't necessarily imply IP, either, since it could be a talk show, or a sports broadcast, or just the news. Thus, the analogy for IP fails on several levels.
  

  Published: August 27, 2009 12:20 PM

• Stephan Kinsella

  Person/Silas/John Sharp/Richard Hardin:

  @Stephan_Kinsella: Why does transmitting the information contained by EM waves over that volume of space constitute "using that particular volume in that way", while transmitting the information contained by the new vacuum cleaner over the surrounding area *does not* constitute "using that particular volume in that way"?

  In both cases, the relevant transmission is over the information, not necessarily any kind of "wave".

  I don't know whta you mean by "relevant transmission". and IP is not a "transmission". The reason why the transmitter of an EM signal values it is not the reason why it is property. It is property (if it is) b/c of the scarcity. It is an actual use of a scarce resource--the EM spectrum over a given volume of space.

  Impatterning my own objects in a certain way is nothing like this. it is NOT a use of other people's property.

  What people like you would need to argue is something like this: having an IP right would give me a right to make more profit by using the monopoly to squelch competition. So just as being able to transmit a usable EM signal lets me make a profit, so does being able to stop others from impatterning their own property.

  But stated out in the open like this it's clear how siilly this is.

  Remember, you only consider radio waves scarce in terms information transfer capacity. Trivially, everyone could broadcast at the same frequency, they just wouldn't transmit any information.

  This is a separate argument. IP is not any kind of information transmission.

  In both cases, someone is claiming the exclusive right to form and transmit a pattern of information.

  NOt true, IP is not about transmitting patterns.

  Published: August 27, 2009 12:30 PM

• Silas Barta

  @Stephan_Kinsella:

  The reason why the transmitter of an EM signal values it is not the reason why it is property. It is property (if it is) b/c of the scarcity. It is an actual use of a scarce resource--the EM spectrum over a given volume of space.

  With all due respect, it's statements like these that reveal your confusion on the issue. You contradict yourself here: it is because the transmitter values (exclusive) transmission at that frequency (due to the capability thereby to transmit information) that a "scarce resource" exists at all.

  OTOH, if you try to say that the scarce resource is "the EM spectrum over a volume of space", you immediately see there's no scarcity at all, because there is no limit whatsoever to how many people can blast out radio waves at 600 kHz in the same area. Sure, sure, there'd be no communication possible, but what does that matter? They all *use* it, don't they? Where does this right to make other people adhere to the necessary assumption for information transmission over a radio wave come from?

  Impatterning my own objects in a certain way is nothing like this. it is NOT a use of other people's property.

  If it's "using someone property" to send EM waves over it, it's certainly "using someone's property" for visible light (which is also EM waves) from your things to pass through it.

  What people like you would need to argue is something like this: having an IP right would give me a right to make more profit by using the monopoly to squelch competition. So just as being able to transmit a usable EM signal lets me make a profit, so does being able to stop others from impatterning their own property.

  First of all, I have explained to you several times that that is NOT a fair characterization of the pro-IP stance, and you are poisoning the well by stating it that way. But just for the sake of the argument, let's say you're right about what IP advocates are saying.

  In that case, the argument for EM spectrum rights is just as flimsy! EM spectrum rights advocates have to say something like, "Having the exclusive right to transmit at frequency f0 (including the right to stop other people who try to transmit at f0) would give me a right to make a profit by using the monopoly to create the conditions necessary for radio communication. Because only one person can make a profit this way for a given frequency, obviously there's scarcity, which entitles me to this monopoly."

  Remember, you only consider radio waves scarce in terms information transfer capacity. Trivially, everyone could broadcast at the same frequency, they just wouldn't transmit any information.

  This is a separate argument. IP is not any kind of information transmission.

  No, it's an argument that reveals the similarity. As I've said several times, there are two kinds of things going on with respect to radio wave transmission. People are transmitting a) waves, but they are also (potentially) transmitting b) information. But just as it would be absurd to say, "What's the matter? You can still transmit!" when you interfere with someone's frequency, it's absurd to say, "What's the matter? You still have your instantiation of that pattern!" to someone asserting IP rights.

  Not true, IP is not about transmitting patterns.

  Are you kidding? IP rights are nothing *but* the exclusive right to transmit certain patterns.

  Published: August 27, 2009 2:33 PM

• Russ

  Just as IP is a useful abbreviation, why don't we use EMP as an abbreviation for EM property.

  Silas Barta wrote:

  "IP rights are nothing *but* the exclusive right to transmit certain patterns."

  You said it better in your earlier post to me; IP has to do with the exclusive right to *instantiate* certain patterns, not transmit them. (I will gladly concede that transmission of a pattern is one way of instantiating it.) To be more specific, IP has to do with the exclusive right to instantiate *certain* patterns on *any* media. EMP has to do with the exclusive right to instantiate *any* pattern on *certain* media. While I can understand how one could confuse the two, there is a difference.

  "But just as it would be absurd to say, "What's the matter? You can still transmit!" when you interfere with someone's frequency, it's absurd to say, "What's the matter? You still have your instantiation of that pattern!" to someone asserting IP rights."

  There is also a difference here. I see you agree that saying "What's the matter? You can still transmit!" is absurd. When somebody says "What's the matter? You still have your instantiation of that pattern!", that is different.

  In the first case, the pattern is disrupted; i.e. the pattern no longer gets to its intended receivers. This is analogous to somebody intercepting your mail, and burning the letters.

  In the second case, the pattern is not disrupted, and does get to its intended recipients (those who are willing to pay for the IP). But in addition, the pattern also gets to those who are not it's intended recipients. This would be analogous to somebody intercepting your mail, copying the letters, and then putting the letters back in the mail so that you receive them.

  Now let's introduce the concept of security. When the medium of transmission is mail, you could rightfully claim that reading your mail is wrongful snooping into your private affairs, because the medium of mail is *secure*. You would have to violate real property rights in order to intercept mail. In the case when the medium of transmission is EM spectrum, snooping cannot sensibly be considered wrong. After all, the idea that people can listen in on the transmission is the entire point. EM spectrum is by its very nature an insecure transmission medium, and insisting that nobody listen in on one's transmission on EM spectrum is absurd. That's exactly how the reception of radio transmissions work!

  IP such as software is similar. The whole point of digital media is that it is easy to copy a pattern on digital media an indefinite number of times without degradation of the pattern. So "transmitting" your pattern on such a media, and then expecting nobody to "violate your privacy" by "snooping in on" your transmission, is absurd. Such an expectation is contrary to the very nature of the medium.
  

  Published: August 27, 2009 4:24 PM

• Stephan Kinsella

  Silas_Barta/John Sharp/Richard Harding/Person:

  "If it's "using someone property" to send EM waves over it, it's certainly "using someone's property" for visible light (which is also EM waves) from your things to pass through it."

  No, it's not--this is the whole point. For me to transmit EM waves thru your property does not interfere with your use of your property, as Rothbard carefully explained (see his pollution article). If it did, it would be a form of trespass, or nuisance. See?
  

  Published: August 27, 2009 5:07 PM

• Silas Barta

  @Stephan_Kinsella: No, it's not--this is the whole point. For me to transmit EM waves thru your property does not interfere with your use of your property, as Rothbard carefully explained (see his pollution article). If it did, it would be a form of trespass, or nuisance. See?

  Forget your previous posts? My comment was referring to this remark you made:

  In EM rights, if you recognize them, the idea is that when you transmit EM waves over a given physical volume of space, you are the first to use that particular volume in that way, so you homestead that right.

  Okay, so if being the first to transmit EM waves through a given volume (by which I assume you meant radio waves) gains you the right to transmit radio waves through that volume, why not other patterns of light, which are also EM waves?

  Think about it.

  Published: August 27, 2009 5:12 PM

• Silas Barta

  @Russ:

  EMP has to do with the exclusive right to instantiate *any* pattern on *certain* media. While I can understand how one could confuse the two, there is a difference.

  There isn't a difference. EMP has to do with the right to instantiate a *specific* set of patterns (those in a frequency band) on *any* device capable of generating such waves. Do you own a transmitter? Sorry, according to Stephan_Kinsella, he actually has partial ownership of it if he owns part of the EM spectrum.

  In the first case, the pattern is disrupted; i.e. the pattern no longer gets to its intended receiver.

  Okay, but my point is, why does this matter? Why do you classify it as "inteference, and therefore bad" in the first place? Where did the right to communication from?

  A brief primer of the information theoretical aspect of radio communication: Radio communication works, to the extent that it works, because a listener can perform a measurement, and thereby learn something about the source, i.e. the message transmitted. (This "something" they learn is called the "mutual information" between the two points, and is equivalent to so-called "Bayesian evidence".)

  In practice, this measurement is: turning on a radio and setting a dial that makes it resonate when the surrounding area is being excited by EM waves around a certain frequency. Now that it acts in sync with the transmitted waves, the radio converts it into sound that is meaningful for you.

  All of this functioning relies on an assumption: that by performing the measurement, you do in fact learn something about the source. That assumption is violated when more than one person transmits at the frequency you perform a measurement on. In this case, no measurement result tells you anything about either source: it's just gibberish. (In the lingo, there's no "mutual information" between you and either source.)

  So when you talk about "disruption", what you really mean is "violation of an assumption some parties were using to communicate which, when violated, makes them unable to communicate."

  Again, where are you getting this right from? How can you have a right to "an assumption about the oscillation of local EM fields holding true"? When you answer that, I claim, you will have a general enough basis to justify IP rights.

  I hope that clarifies my position for you.

  Published: August 27, 2009 5:30 PM

• Russ

  Silas Barta wrote:

  "Okay, so if being the first to transmit EM waves through a given volume (by which I assume you meant radio waves) gains you the right to transmit radio waves through that volume, why not other patterns of light, which are also EM waves?"

  It has to do with the different nature of radio receivers and light receivers (eyes), not the similar nature of radio waves and light. Radio receivers are non-directional in nature. If two people transmit separate signals at the same frequency in the same geographic area, a radio receiver picks up both signals at the same time. It then superimposes the two transmitted patterns, rendering them both useless. Therefore, in order for EM spectrum to be useful, homesteading is required. Light receivers (eyes) are directional in nature. Two people can wear shirts with red lettering on them. I can receive either transmission by simply turning my head to look at one shirt or the other. Since the transmission of signals in the frequency of red is not rendered useless by multiple transmitters in the same geographic area, homesteading of light is not required.

  I've taken your argument regarding red seriously and on its own terms, and think I've found a flaw in your reasoning. I've also taken your argument regarding pattern instantiation seriously and on its own terms. In fact, I've taken it so seriously (since I think it is the more weighty of your two arguments) that I have expanded on it by distinguishing between pattern instantiation and medium of pattern transmission, and also introduced the concept of security of the medium. Will do me the same favor, and take my responses to you seriously enough to respond to them on their own terms?

  Published: August 27, 2009 5:52 PM

• Buzungulus Rising

  Russ,

  You're wasting your time; Silas is a complete ass-hat.

  Published: August 27, 2009 6:13 PM

• Russ

  Silas Barta wrote:

  "Do you own a transmitter? Sorry, according to Stephan_Kinsella, he actually has partial ownership of it if he owns part of the EM spectrum."

  It sounds suspiciously like you are dropping support for EMP.

  Caveman wrote:
  "Silas, if/when Kinsella drops his support for EM spectrum rights, what then?"

  Silas Barta replied:
  "Caveman: Then he resigns himself to permanent crankdom. He'll just be known as the guy who doesn't believe in communication via radio waves."

  Are you resigning yourself to permanent crankdom, Silas?

  "Okay, but my point is, why does this matter? Why do you classify it as "inteference, and therefore bad" in the first place? Where did the right to communication from?"

  It sounds a lot like you don't believe in communication via radio waves.

  "Again, where are you getting this right [to communicate via radio waves] from?"

  From the same place I am getting the right to own land, or any other material property. Ownership of EMP is the only way to make EM spectrum useful, in just the same way that ownership of land is the only way to make land useful (otherwise you get the tragedy of the commons). Now, granted, we could live without the ownership of EMP, while we couldn't live without the ownership of land. But anyway, if you don't acknowledge the ownership of EMP, then by your own admission, you resign yourself to permanent crankdom. I think you're painting yourself into a corner here, Silas.

  Published: August 27, 2009 6:19 PM

• Sasha Radeta

  It's a shame so many non-economists talk about issue of scarcity.

  My dear fellow libertarians, scarcity is not the only prerequisite for something to qualify as property. Economic services are also scarce, meaning their supply would be lower than demand if prices were set to zero. Consequently, in order to decide who gets these services, market prices are set. People now pay for services such as labor -- or even service of looking at someone's works of art in a gallery. However, you can never own labor or artistic beauty in proprietary sense. We can all agree that services cannot be treated as property, although they are scarce - because they cannot be homesteaded or exclusively physically occupied.

  You also cannot own ideas; and by the way, IP is not based on this notion - since it only applies to material (physical) goods, restricted for commercial use by people other than owners. By the same token, you can never homestead EM spectrum, because your radio messages can be disrupted by someone else without any physical trespass against your property. EM spectrum is not tangible and it is no more "physical" than light, work or energy (which also cannot be owned and homesteaded).

  On the other hand, radio stations can simply claim easement rights for their business over a particular space -- and there you have it. Easement does not give the holder a right of "possession" of the property, but only a personal privilege to use land of another for a limited purpose. People can have an easement for solar light (in order to protect their property from being encircled by high walls from all sides), however this by no means suggests that "light is property."

  So when I read postings by anti-IP advocates about EM spectrum being type of real property -- and at the same time some IP proponents saying ideas are economic goods that can be protected by patents - I can't help but wonder would this blog go out of business if Amsterdam coffee shops and insane asylums would switch off their internet access? Just kidding – don’t get mad.

  Published: August 27, 2009 6:20 PM

• Russ

  Sasha Radeta wrote:

  "On the other hand, radio stations can simply claim easement rights for their business over a particular space -- and there you have it."

  I think you're splitting semantic hairs here. Whether you call it easement or ownership of EM spectrum or EMP or a purple platypus, the point of the matter is the same; does a person have the sole right to broadcast in a certain frequency range in a given geographic area, or not?

  Published: August 27, 2009 6:27 PM

• Sasha Radeta

  Russ,

  it''s more then semantics. As you can see on this blog, both IP proponents and opponents are arguing about "idea ownership" ad nauseam, while in fact ideas are not even the subject of IP -- and the whole issue in reality revolves around the issue of unauthorized use of author's real property (trespass) -- and how distinctive features of works of authorship can be used to proved unauthorized commercial use such as replication.

  At the same time, it is not semantics when I say that light cannot be owned -- but the person may have easement rights over other person's use of his property in order to obtain this economic necessity. Likewise, for some businesses, broadcast over a specific frequency range over specific geographic location is easement. The specific use of frequency represents necessity for substantive property rights over some business.

  To answer your question, the person may broadcast exclusively in a certain frequency range in a given geographic area, based on easement that doesn't violate another person's existing property rights in similar business. However, this cannot logically be viewed a homesteading act over a piece of property.

  Published: August 27, 2009 7:00 PM

• Russ

  Silas,

  In the interest of being more civil here from now on, I apologize for being snotty with you in my last post. In my defense, I did so because I found your presentation extremely confusing. I find your "red" argument to be horribly counter-productive; it does not help to clarify your position. In fact, I think it obscures it. (I do not, BTW, consider you an "ass-hat". I'm not even sure what that means, although I somehow doubt it's complimentary.)

  After stepping away from my computer, and having a few cigarettes and some Guinness while mulling over what you wrote, I think I understand what you meant better now. I will now attempt to take what I think you mean seriously.

  Axiom 1: The exclusive right to broadcast over a given frequency range in a given geographic area (EMP for short) will be considered as a given, since if one doesn't take it as a given, one is resigning oneself to permanent crankdom.

  Axiom 2: Property rights give one the exclusive right to control said property, as long as that does not not violate the rights of others to do the same.

  Argument: Axioms 1 and 2 are contradictory. If one has EMP rights, then that denies others the right to control their property (transmitters), as they see fit.

  Conclusion: One of these axioms must give. If we stick with Axiom 1, then it follows that Axiom 2 must be modified, such that property rights do not give one the *total* control of one's property. Specifically, one does not have the exclusive right to control one's transmitter, if that interferes with another person's EMP rights.

  Corollary: If one's EMP rights can rightfully limit another's right to control his own transmitter, one can similarly use IP to rightfully limit another's right to control his own computer.

  If this were the end of the discussion, and assuming this is a correct understanding of your position, I would have to agree with you. IP rights and EMP rights are analogous; if one is valid, why not the other?

  But this is not the end of the discussion. Stephan uses the concept of scarcity to explain why the *apparent* paradox of considering EMP justified but not IP is not really a paradox. I prefer to use the concept of exclusivity instead of scarcity. (I'll save the explanation for that preference, unless someone is actually interested.)

  My de-paradoxification of the apparent paradox is as follows:

  We take Axiom 1 above for granted, because otherwise EM spectrum would be useless. It seems absurd to deny ourselves any meaningful use of this resource. It seems, on the face of it, similarly absurd to deny ourselves any meaningful use of IP.

  However, IP and EMP have different natures. EMP is justified by its utility. That utility requires that the right to transmit on a given frequency range, in a given geographic area, be *exclusive*. Otherwise, no utility. IP is different. The utility of a piece of software does not *require* that the right to instantiate that pattern be exclusive. The inventor (or discoverer, as you prefer) of a pattern, i.e. the writer of the software, still retains the ability to get use out of that software, even if somebody else copies it. If he writes a piece of software to perform quaternionic algebra, and somebody copies that software, he can still use his original copy to perform quaternionic algebra. No functionality is lost. Hence, exclusivity is not required for the software to be useful, as it is with EMP. The natures of IP and EMP are not really the same, despite their *apparent* similarity. Hence, the corollary above is false, and the apparent paradox is not really a paradox at all.

  Where you err, in my opinion, is in the conflation of the utility of the software with the ability to make obscene amounts of money by selling it. The hope that one can make money by selling the software is not the (direct) utility of a piece of software; it is a business plan.

  Published: August 27, 2009 7:38 PM

• Russ

  Sasha Radeta wrote:

  "...ideas are not even the subject of IP -- and the whole issue in reality revolves around the issue of unauthorized use of author's real property (trespass)..."

  Trespass on the author's real property? How so?

  "To answer your question, the person may broadcast exclusively in a certain frequency range in a given geographic area, based on easement that doesn't violate another person's existing property rights in similar business. However, this cannot logically be viewed a homesteading act over a piece of property."

  I think you're taking these phrases too literally. Of course the idea of "homesteading" EM spectrum makes no literal sense. But it does make figurative sense, and seems a reasonable analogy. We're not lawyers here (not most of us, anyway).

  Published: August 27, 2009 7:46 PM

• newson

  i, too, think kinsella risks wandering into silas' e.m. mousetrap.

  i see homesteading of e.m. as fraught with problems. where does the "territory" end? with shifting fences, any "property" is open to endless fights. it sounds like an invitation for a squad of technical goons to oversee the industry.

  everyone should be free to use whatever part of the spectrum they desire. the earlycomers will probably have the advantage of having powerful antennas set up, so latecomers risk having to cough up enormous amounts of capital to overpower the existing signal (and why would you do this, if your signal is to be distorted by the existing one?). or maybe you can use the same spectrum without interference, by emitting only in dead moments on the same wavelength.

  at a dinner party, generally it's seen as rude to interrupt someone already speaking, but it can be done in particular instances, and there is no hard and fast rule that can be applied.

  soapbox orators in a park tend to use commonsense and space themselves at a distance from the "competition", so that their audience isn't distracted by the others' noise. nobody has any rights to hear one speaker in isolation. commonsense and good manners rule the day.

  Published: August 27, 2009 8:13 PM

• Russ

  newson wrote:

  "the earlycomers will probably have the advantage of having powerful antennas set up, so latecomers risk having to cough up enormous amounts of capital to overpower the existing signal (and why would you do this, if your signal is to be distorted by the existing one?)"

  To silence political dissent, for instance?

  "commonsense and good manners rule the day."

  Yes, and if everybody exhibited common sense and good manners with respect to real property like land, we wouldn't need the concept of property rights. And yet, we do.

  Published: August 27, 2009 8:42 PM

• Sasha Radeta

  Russ,

  trespass by its definition is use of one's property without the owner's consent or authorization. IP issues always deal with unauthorized commercial use -- kinds of services that owners of original works of authorship want to keep exclusively for themselves (and private property rights allow them to do so, because ownership means ability to control and sell services derived from your property).

  I'm not a lawyer either, but I think it is very important to avoid incorrect assertions such as "EM homesteading." As you can see from this discussion, debate about whether ideas, thoughts, or frequencies can be owned, are only diverting the discussion away from the real issue here.

  And the major aspect of EM spectrum issue comes down to substantive property rights of individuals in their businesses. Whenever the proper exercise of property rights is violated, there must be an easement provided for this owner (for example, completely blocking the light source toward other person's garden is disabling its basic functions making his property rights rather formal – so the easement for light is provided to protect the essence of property rights).

  The fact that state now assumes the role of assigning these easement rights does not make these common law principles wrong in principle -- just like states assignment of IP rights does not imply that protection against unauthorized use is statist.

  Published: August 28, 2009 2:12 AM

• Peter Surda

  @Silas Barta
  > Others and I addressed your points before, and I'm
  > not going to bother trying to get through again.
  With all due respect, no. On the contrary, they have been dodged and the most vocal IP proponents keep repeating arguments which are either obviously false or confusing. Even now where I admitted to agree with you about MHz vs THz and explained why it is consistent with my views, you still dodge.

  So let me summarise:

  (terminology)
  - IP is not the right to instantiate anything, rather a right to prevent others from doing so
  - the right to instantiate something (as long as such a right even is possible) is (classical) property
  - kindly consult the diagrams that I made to explain this: http://shurdeek.shurdix.org/tmp/ip.png and http://shurdeek.shurdix.org/tmp/ip2.png

  These claims are backed by experts including IP proponents, it's not just something that I pulled out of thin air.

  (assertion)
  - only the right to use and right to trade can be used to determine if something is property. Other views lead to contradiction in the underlying theory.
  - the right to exclude alone is not sufficient, and in some cases, not even necessary for any property rights.

  (conculsion)
  - even if IP is recognised, it has nothing to do with property
  - the argument for IP as a natural right is unsubstantiated

  Published: August 28, 2009 2:12 AM

• Sasha Radeta

  Surda made a great summary:

  IP is not the right to instantiate anything, rather a right to prevent others from doing so (WITH YOUR OWN PROPERTY – I add).

  In short: If you believe that property owner should be able to allow (sell or rent) one kind of use of his property – while at the same time having the right to retain other exclusive rights of use – you support copyright.

  EM spectrum issues are far more complex than IP, because they deal with the concept of easement, which stem from basic property rights (no wonder why many IP opponents also reject easement for radio frequencies).
  

  Published: August 28, 2009 2:24 AM

• Peter Surda

  @Silas Barta:
  > Okay, so if being the first to transmit EM waves
  > through a given volume (by which I assume you
  > meant radio waves) gains you the right to transmit
  > radio waves through that volume, why not other
  > patterns of light, which are also EM waves?
  Sigh. There is no theoretical difference. Only that from practical point of view, there is little difference between land ownership and visible spectrum ownership. Empirical data indicates that there is no money to be made out of it. That is why there are no large scale efforts or markets on visible spectrum rights. The issue is completely practical and has nothing to do with not recognising ownership. I have absolutely no problem with agreeing that you have all the rights (use/trade/exclude) to any visible EM radiation in your own apartment. But what does this have to IP? Nothing. In your apartment, you can forbid other people to do things anyway, regardless of whether you recognise EM or IP.

  Don't you see? You have no argument at all. IP stretches over the whole universe, regardless of homesteading, transmission, manufacturing, information, consumption and trade. Classical property rights, and also EM rights (should one decide to recognise them) are physically limited in scope and the scope can be determined by these actions.

  This reminded me of some arguments I read in The Privatization of Roads and Highways by Walter Block. He wrote that land ownership does not stretch as a cone to the middle of the earth and to the sky. If it would, that would be much more like IP. It could allow you to claim ownership of other celestial bodies, for example, that are passing overhead (i.e. ad infinitum). His conclusion is that it only stretches as far as you can reasonably claim to have homesteaded it. This was not supposed to be an analogy, just something to think about. You can't claim ownership of what other people do at their own premises, unless of course, they have a contractual obligation.

  Published: August 28, 2009 2:46 AM

• newson

  to russ:
  my remarks are premised on a laissez-faire regime. totalitarian regimes aren't going to have to worry about niceties like rights.

  arguments over physical property are more easily resolved through clear fencing and enclosure, hence my skepticism over e.m. homesteading.

  Published: August 28, 2009 4:19 AM

• Silas Barta

  @Russ: Thanks for your latest thoughtful reply. It seems that our views are closer than they originally seemed, and your response to newson shows a great understanding of the issues involved.

  This is where I think our disagreement is:

  However, IP and EMP have different natures. EMP is justified by its utility. That utility requires that the right to transmit on a given frequency range, in a given geographic area, be *exclusive*. Otherwise, no utility. IP is different. The utility of a piece of software does not *require* that the right to instantiate that pattern be exclusive.

  I believe that the utility of a piece of software *can* require that the right to instantiate it be exclusive, for the simple reason that some welfare-enhancing (in the Pareto-optimal sense) software simply would not exist if not for IP. Also, lack of exclusivity would run into the calculation problem: how many physical goods (land, labor, capital) are worth committing to produce software with a certain kind of functionality. Without property-based pricing, we lose utility in the misallocation of resources.

  So you could just as well say that it would be absurd to deny ourselves the utility of these new ideas. (And of course it's not necessary that *all* new ideas have exclusivity rights attach to them; just as with physical property rights, if people wish, they can waive such rights, just like an EMP owner could allow people to use his frequency as a "firing range" for those who felt like blasting pointless waves.)

  Published: August 28, 2009 9:55 AM

• Russ

  Sasha Radeta wrote:

  "trespass by its definition is use of one's property without the owner's consent or authorization."

  Yes, of course. My question was, if we consider only real property and not "intellectual property", how am I trespassing on, say, Microsoft's real property by copying the latest version of Visual Studio from a friend who gives me permission? This is only valid if you assume that the CD is not my friend's real property, which he can do with as he please, but is the property of Microsoft, who are leasing it to my friend along with certain very limited usage rights. This would require a contract; then you get into the issue of whether EULAs are valid contracts.

  Published: August 28, 2009 10:31 AM

• Russ

  newson wrote:

  "my remarks are premised on a laissez-faire regime."

  Ah, but what if there is dissent about what constitutes a laissez faire regime? As you can see from the posts here, nobody is going to agree on everything.

  "arguments over physical property are more easily resolved through clear fencing and enclosure"

  Frost said "good fences make good neighbors", but what he really meant is that good fences keep honest neighbors honest. There are those who are not honest, and will not be made honest by fences. Not only clear delimitation of rights, but enforcement of rights is necessary. "Why can't we all just get along" is not a valid political philosophy.
  

  Published: August 28, 2009 10:39 AM

• Silas Barta

  "Why can't we all just get along" is not a valid political philosophy.

  Totally quoteworthy!

  Published: August 28, 2009 10:42 AM

• Michael A. Clem

  Radio receivers are non-directional in nature.
  
  If the FCC didn't grant licenses to the EM spectrum, then how would radio stations have resolved their conflicts? How did they resolve their differences before the FCC was interposed on the radio industry? The industry didn't ask for the government's help in resolving their differences--they went to court if they couldn't settle things peacefully among themselves.
  
  While Sasha's easement idea has merit, it still implies that EM frequencies are property. But I'm beginning to come around to the idea that the EM spectrum cannot be "owned".
  
  If the FCC hadn't interfered, I suspect that receivers would have become more sophisticated than they are now, and become directional in nature. Consumers would have to know one more piece of information to pick up transmissions: frequency and direction, but it would go a long way towards resolving the disruption problem, and would allow multiple transmissions over the same frequency within the same geographical area (within limits).
  
  Yes, it's a technical solution, but why resort to complicated rules and laws if you don't need to?

  Published: August 28, 2009 10:58 AM

• Russ

  Silas,

  Excellent! Now we're really getting somewhere!

  (I knew somehow that my argument would be more productive than continuing with the "red shirt" argument. I honestly think you should consider discarding it; not necessarily because it's wrong, although I think it is for technical reasons, but because it's not conducive to furthering your cause. May I ask; How many pro-EMP, anti-IP people have you converted by means of the "red shirt" argument? I'm guessing not many.)

  Anyhoo...

  I can see your point about Pareto-optimality, although I am not sure I agree with it. I also can see the greater point that, if one is amenable to Pareto-optimality arguments or other such utilitarian arguments with respect to EMP, then one cannot be *in principle* opposed to justifying IP on utilitarian grounds without being inconsistent.

  I'm not opposed to justifying IP on utilitarian grounds, I'm just not sure any good grounds exist. I could go on about open source, etc., but I imagine you've heard these arguments before, so I'll forego this discussion unless you wish to go there.

  It just occurred to me that this discussion ties neatly into my "What Libertarianism Is" debate. If one justifies EMP on utilitarian grounds, then not only can one not be in principle opposed to justifying IP on utilitarian grounds without being inconsistent, but one also cannot be in principle opposed to justifying *minarchism* on utilitarian grounds! Thank you! You've just given me a fairly rigorous way of claiming that SK is being inconsistent unless he either drops support for EMP (thus resigning himself to permanent crankdom *grin*), or declares himself not opposed to minarchism in principle! Mwahaha!!!

  Published: August 28, 2009 11:12 AM

• Silas Barta

  @Russ: Great! I'm glad we came to an understanding, even if we still have disagreements.

  Published: August 28, 2009 11:21 AM

• Russ

  Michael A. Clem wrote:

  "The industry didn't ask for the government's help in resolving their differences--they went to court if they couldn't settle things peacefully among themselves."

  If they went to court, wasn't that asking for the government's help in resolving their differences? I see EMP as being similar to the recording of boundaries for the purposes of resolving land border disputes. They would help the courts to resolve EMP disputes.

  "Yes, it's a technical solution, but why resort to complicated rules and laws if you don't need to?"

  I agree, in principle. If a technical solution could be devised, there would be no need for a legal one.

  Published: August 28, 2009 11:24 AM

• Sasha Radeta

  I owe a response to Russ's question:

  "...if we consider only real property and not "intellectual property", how am I trespassing on, say, Microsoft's real property by copying the latest version of Visual Studio from a friend who gives me permission?

  As both of us already asserted: trespass is use of property without its owner's consent. In your example, Microsoft (RIGHTFUL OWNER) never gave you its permission to use their Visual Studio in such manner. So by the very definition - you are trespassing.

  Your friend purchased only limited personal use -- and in absence of contractual restrictions, he can only lend you this limited use. Your friend does not possess other (much more expensive rights), so he cannot give you "permission" for that kind of use.

  ======

  Michael A. Clem,
  
  My easement argument does not imply that EM frequencies are property. As I carefully and repeatedly explained, people have easement rights to obtain solar right, without ever implying that light is property. EM frequency should not even be a controversy for those who understand what makes property rights substantive and why common law holds easement rights so sacred.

  Best regards.

  Published: August 28, 2009 12:48 PM

• Russ

  Sasha Radeta wrote:

  "In your example, Microsoft (RIGHTFUL OWNER) never gave you its permission to use their Visual Studio in such manner. So by the very definition - you are trespassing."

  All of this assumes IP. That's the very question in dispute: Does Microsoft have the right to claim Visual Studio as its property?

  "Your friend purchased only limited personal use..."

  No, he purchased a real material object; a DVD. This DVD is encoded with a pattern of bits. (Or as Silas would say, correctly, a pattern is instantiated on the DVD.) What gives Microsoft the right to say that my friend cannot use his own property to copy this pattern in any manner he so chooses? After all, the DVD is his property, and his computer is his property. In the absense of IP (which you are implicitly assuming), and in the absense of an explicit contract between Microsoft and my friend limiting his rights, I cannot see that Microsoft has a valid complaint against my friend.

  Published: August 28, 2009 1:01 PM

• Sasha Radeta

  Russ,

  You misunderstood the issue completely. DVD is physical object owned by Microsoft -- and I only asserted that you need their permission -- not your friend's -- to use their physical property in such manner. This by no mean imply that Microsoft owns "pattern of bits" -- these patterns will only serve as evidence that you used Microsoft's property in ways they never agreed upon.

  Published: August 28, 2009 1:19 PM

• Russ

  Sasha Radeta wrote:

  "You misunderstood the issue completely. DVD is physical object owned by Microsoft -- and I only asserted that you need their permission -- not your friend's -- to use their physical property in such manner."

  I could be wrong, but I think you are the one misunderstanding the issue. It's true, the DVD is a physical object owned by Microsoft -- until Microsoft sells the DVD to my friend! At that point, the DVD becomes a physical object owned by my friend. This is exactly how selling and buying physical objects ordinarily works; selling the object transfers the right to control the object from the seller to the buyer. At that point, the buyer (my friend) can rightfully give me a copy it he so wishes, unless there is something restricting his right to do so. That something could be a contract, or it could be IP.
  

  Published: August 28, 2009 2:02 PM

• Sasha Radeta

  Russ,

  Trust me, you're wrong and even a bit funny. Microsoft does not sell full ownership rights over Visual Studio to your friend - that would cost him an incredible fortune, for heaven's sake. They only allowed him a strictly limited use of their DVD for a lot smaller amount. Your friend can only lend this permitted right to you -- nothing more than that. Full ownership rights over such valuable good as Visual Studio are not your friend's to give.

  Many companies often purchase expensive full-ownership rights from authors, but your example has nothing to do with that. I think you'll find it amazing, but you can completely avoid all copyright restrictions, just by paying full market price for full ownership over a valuable work of authorship or invention.

  Published: August 28, 2009 2:34 PM

• Russ

  Sasha Radeta

  "Trust me, you're wrong and even a bit funny."

  No, trust me, you're wrong and even a bit funny. You're apparently either having a language difficulty, or you can't even realize that you're taking IP for granted, or both.

  "Microsoft does not sell full ownership rights over Visual Studio to your friend - that would cost him an incredible fortune, for heaven's sake. They only allowed him a strictly limited use of their DVD for a lot smaller amount."

  Whether it would cost Microsoft an incredible fortune is completely irrelevant. You say that Microsoft only sells limited use of the DVD to my friend, not full ownership rights. OK, let's analyze that contention. What if Microsoft were to sell me a physical object, let's say a bar of gold? Then I would have full ownership rights to that bar of gold, yes? Then let's say that I decided to sell that bar of gold to Oracle or Sun. I would have every right to do so, correct? Microsoft could not rightfully restrict me from doing so, yes?

  OK, a bar of gold is a physical object. If I buy a bar of gold from Microsoft, they cannot then claim any right to limit my control of it (aside from things like throwing it through their front window, of course). A DVD is also a physical object. You claim that if I buy it from Microsoft, they *can* then claim a right to limit my control of it. There is an unexplained difference here, even though both the bar of gold and the DVD are physical objects. I am confused. Shouldn't they be treated the same? So, what accounts for the difference?

  Published: August 28, 2009 2:50 PM

• Stephan Kinsella

  Sasha:

  "DVD is physical object owned by Microsoft -- and I only asserted that you need their permission -- not your friend's -- to use their physical property in such manner. This by no mean imply that Microsoft owns "pattern of bits" -- these patterns will only serve as evidence that you used Microsoft's property in ways they never agreed upon."

  Poor Sasha, you appear to think learning something implies using another's property. This is absurd. Suppose I meet you on the street. You pull out your walkman and say, hey, listen to this--and you play for me a tune. I start humming it, and later on, in my studio, I use that tune as part of my new song. I never used any property owned by the originator of the tune.

  Or, suppose you have a painting on the wall of your living room, and I can see it thru your windows, from my house across the street. My observation of that pattern of light bouncing off your house is not a "use" of the painting, even if it is owned by someone else.

  Poor confused Sasha.

  Published: August 28, 2009 2:56 PM

• Sasha Radeta

  Russ,

  I absolutely agree with you (although you seem to have cognitive difficulties)! If Microsoft sells full ownership rights over their invention (in its physical form) -- you have every right to do whatever you want with it!

  HOWEVER, Microsoft did not sell this valuable property to your friend. Instead, they only permitted a strictly limited kind of use of their property, in exchange for a relatively small amount of money.

  You ask "what accounts for difference" (between your friend and say a company that decides to pay a fortune to Microsoft in order to obtain full ownership rights)!?! It's the price they paid and goods they obtained that makes a difference.

  ================

  
  Oh great Dr. Stephan Kinsella,

  please forgive my poor soul for finding your examples completely irrelevant and nothing more than humorous. And you're absolutely correct: I'm confused by the lack of common sense and intellectual decency I often find here... And I'm not surprised you find your own example with humming absurd -- because it is absurd!

  So please forgive me and allow me to respond:
  If you just see a painting in a museum and you decide to paint your version of it -- I will be the first to support you in doing so... If you're good enough to make almost-identical replica and you sell it under false signature of the author, defrauding a customer into believing he's getting the authentic version -- this person may sue you for fraud.

  However, your examples have nothing to do with my real arguments and true unauthorized use of author's property.

  Best regards,

  Published: August 28, 2009 3:19 PM

• Larry N. Martin

  What? Microsoft only sells limited rights to their cds and dvds? I've been hoodwinked--defrauded, even!

  ;-)
  

  Published: August 28, 2009 3:53 PM

• Sasha Radeta

  LOL!

  "We have now sunk to a depth at which restatement of the obvious is the first duty of intelligent men."

  George Orwell

  Published: August 28, 2009 4:00 PM

• Paul Lockett

  Sasha Radeta: "If you just see a painting in a museum and you decide to paint your version of it -- I will be the first to support you in doing so"

  Even if the artist sold it on the understanding that it not be replicated? Compare this statement with a previous one of yours:

  "Microsoft does not sell full ownership rights over Visual Studio to your friend - that would cost him an incredible fortune, for heaven's sake. They only allowed him a strictly limited use of their DVD for a lot smaller amount. Your friend can only lend this permitted right to you -- nothing more than that. Full ownership rights over such valuable good as Visual Studio are not your friend's to give."

  There's no consistency. If the artist had not, in your terms, transferred "full ownership rights," then you can't reasonably view the replication as less of a trespass.

  Published: August 28, 2009 4:06 PM

• Sasha Radeta

  Paul Lockett,

  Your example has noting to do with Stephan's. Read more carefully. Try to find something to help you focus.

  Best regards.

  Published: August 28, 2009 4:09 PM

• Paul Lockett

  Do you have no counter argument at all to offer, Sasha? If there is an inconsistency in my comparison, I'd be grateful if you could point it out for me.

  Published: August 28, 2009 4:29 PM

• Russ

  Sasha Radeta wrote:

  "I absolutely agree with you (although you seem to have cognitive difficulties)!"

  Heh. I don't see why the insults are necessary, but ... Well, you asked for it. You obviously don't have any problems with embarassing yourself, so you shouldn't object to being embarassed by me.

  "If Microsoft sells full ownership rights over their invention (in its physical form) -- you have every right to do whatever you want with it! HOWEVER, Microsoft did not sell this valuable property to your friend. Instead, they only permitted a strictly limited kind of use of their property, in exchange for a relatively small amount of money."

  A DVD is normal material property, and a form of property right applies to it. Let's call this form of property right "normal property rights", shall we? Now, "their invention" (the software) is not normal material property. It is only a pattern of bits on the normal material property. If Microsoft sells me a DVD, and I have full normal property rights to the DVD, I should be able to copy this pattern of bits. You are saying that, even if I buy the material property (the DVD), that does not give me the normal property right to copy a pattern of bits (the software) from my material property (the DVD) to my material property (a blank DVD) using other of my material property (my computer). OK, fine. I won't worry about what justifies this limitation of my normal property rights. My point is, you are saying that Microsoft has some special sort of property right that is not like normal property rights. This special sort of property right limits my normal property rights, such that I cannot copy patterns of bits (software) from my own property, with my own property, to my own property, even though I have signed no contract with them agreeing to this limitation. We in the English speaking world have a special phrase we like to use to describe this special sort of property right. This special phrase is ... drumroll, please! ... intellectual property!
  

  Published: August 28, 2009 4:34 PM

• Stephan Kinsella

  Yes, Sasha is trapped here. The question about the viewing of the neighbor's copy of a famous painting is not about me fraudulently representing I am the author of the copy or derivative work I make based on my view of it. It is about whether the author of the painting can stop me or not. He has to be able to stop me to get a version of IP out of this scenario: but how can he? I didn't agree with him in a contract; nor did I ever even arguably "trespass" on his property by handling, using, possessing the painting (let's say it's his) without his permission. No, I only observed it, from across the street.

  If Sasha grants that this is not a form of use, then there is no basis to ensnare me in any liability for selling derivative works based on it. And if there is not, then such "exceptions" would make any simulated contractual IP regime crumble. Sasha's little theory is dead in the water. Poor Sasha.

  Published: August 28, 2009 4:54 PM

• Sasha Radeta

  Paul - what counter argument??? You perfectly got the grasp of the essence of what I'm saying...

  Except for the fact that you hallucinate inconsistency in my arguments, since I responded to a completely different example presented by Stephan.

  Like I said, find something to help you focus.

  =============

  Russ,

  You must be the alumni of Dr. Kinsella's seminar. First you start with ad hominem comments that have nothing to do with our topic, and then you get all offended when someone forwards the same kind of comment to you (only true).

  By the way, there is no need for reinventing legal theory on your part and all that nonsense about "normal property".

  A DVD is perfectly fine piece of physical property and its use can be strictly limited and restricted by its proper owner (Microsoft in this case). I know these (normal) restrictions of one's property frustrate you, but this obvious exercise of ownership rights really has nothing to do with Dr. Kinsella's favorite topic of "pattern ownership" (whatever that means, since IP laws do not know anything about such nonsense).

  Published: August 28, 2009 4:59 PM

• Russ

  Sasha Radeta wrote:
  "You must be the alumni of Dr. Kinsella's seminar."

  No, alas, I've never had the pleasure.

  Sasha Radeta wrote:
  "First you start with ad hominem comments ..."

  Sasha Radeta wrote earlier:
  "Trust me, you're wrong and even a bit funny."

  Excuse me? Who started with ad hominem comments?

  You mean, let me understand this cause, ya know maybe it's me, I'm a little fucked up maybe, but I'm funny how, I mean funny like I'm a clown, I amuse you? I make you laugh, I'm here to fuckin' amuse you? What do you mean funny, funny how? How am I funny?
  (*grin*)

  "A DVD is perfectly fine piece of physical property and its use can be strictly limited and restricted by its proper owner (Microsoft in this case)."

  Again, if I buy a DVD (as you acknowledge, a "perfectly fine piece of physical property") from Microsoft, then it is no longer Microsoft's physical property, it is *mine*. If it is not really mine, then there must be either a contract specifying that I am only purchasing limited rights to use the DVD instead of normal property rights, or there must be something going on here that is different from normal property rights.

  "By the way, there is no need for reinventing legal theory... "

  That's kinda what normative political philosophy does, Sasha. Sure, I know what the law is. That's not the question. The question is, is the law justified? In order to answer that question, we have to agree about what we are talking about. In other words, we have to define our terms.

  Published: August 28, 2009 5:21 PM

• newson

  to russ:
  i'm not under naïve impression that the absence of e.m. law will be without disputes, it's just that i don't see that legislation will add much more than a truckload of bureaucrats and technicians to draft and ensure compliance.

  why should i be unable to use empty spaces in your particular "homesteaded" frequency to transmit data to my clients? this may well cause you no nuisance.

  the atmosphere, the medium of e.m. transmission, is a public good; no one should have the legal right to privatize any aspect of this public good. people don't have rights to receive interference-free radio/tv signals. of course, if the signal providers are unable to come to amicable arrangements to ensure signal quality, that's going to affect their business model. maybe people will migrate to internet, cable or whatever. stiff cheese.

  please note that airlines don't "own" air routes, they own slots at the airports (worth a fortune). even without laws, i don't believe airlines would be stupid enough to all fly at each other without some gentlemen's agreement or convention. i just don't think mid-air collisions are good business for the whole airline business. i don't see the need for a government overseer.

  i've driven in plenty of parts of the third-world where there are no lane markers on the roads, and most people still stay on the conventional side of the road, just like magic!

  Published: August 28, 2009 8:25 PM

• Russ

  newson wrote:

  "it's just that i don't see that legislation will add much more than a truckload of bureaucrats and technicians to draft and ensure compliance."

  I don't see how the bureaucracy that would be needed for EM spectrum rights would have to be more involved than that needed for keeping track of land boundaries. All it would have to do is track frequency range and coverage area for a given transmitter. You wouldn't necessarily need to have a "truckload of bureaucrats and technicians to draft and ensure compliance", any more than you do to enforce property rights. If someone has a complaint, they take the complaint to court, the court looks up who owns the rights to the EM "boundary" in question, and makes a decision. EM rights needn't require a separate enforcement arm such as the FCC.

  "why should i be unable to use empty spaces in your particular "homesteaded" frequency to transmit data to my clients? this may well cause you no nuisance."

  Because in order to not interfere with one another's broadcast, the two broadcasters would have to somehow coordinate their broadcast times. Otherwise, one broadcaster could plan on broadcasting at 6AM, only to find out another broadcaster has started using it at 5AM and still is. Now maybe the two broadcasters can come to an understanding, maybe they can't. The easiest way to avoid disputes is EM spectrum rights. The broadcaster who owns EM spectrum rights could simply sell broadcast time to the second broadcaster, if no more "homesteadable" spectrum is available in the area. Thus the EM spectrum time-slicing problem is easily solved.

  "the atmosphere, the medium of e.m. transmission, is a public good; no one should have the legal right to privatize any aspect of this public good."

  Technically speaking, this isn't correct. EM waves require no medium in order to propagate. They can even propagate in the vacuum of deep space (and Einstein proved with his theory of special relativity that there is no undetectable "ether" that EM waves propagate through). So, there is no public good in the sense you intend. The EM wave itself, it is true, is a public good in the sense that it is not practically feasible to prevent people from benefitting from it unless they pay. That is why the radio business depends on advertisements, not on listeners paying.

  "people don't have rights to receive interference-free radio/tv signals."

  Then what you are saying is that we should not take advantage of EM broadcasting as a means of communications, just because the idea of enforcing EM spectrum rights bothers you? The words "permanent crankdom" are coming into my head. *grin*

  "of course, if the signal providers are unable to come to amicable arrangements to ensure signal quality, that's going to affect their business model. maybe people will migrate to internet, cable or whatever. stiff cheese."

  Again, what if a business model is not an issue. Let's say that we're in a "laissez faire regime", except for EM spectrum rights. You go on the air to talk to AM radio talking head Sean Limbaugh about your idea that not having EM spectrum rights would work much better. A pro-EM spectrum rights consortium jams the signal to shut you up. If you object to this, they have proved your inconsistency.

  "please note that airlines don't "own" air routes, they own slots at the airports (worth a fortune). even without laws, i don't believe airlines would be stupid enough to all fly at each other without some gentlemen's agreement or convention. i just don't think mid-air collisions are good business for the whole airline business. i don't see the need for a government overseer."

  But now the government *does* oversee airline routes, at least I believe so. The FAA is responsible, yes? Without laws, some huge private organization would be necessary to replace the FAA. Another option would be that airlines *do* own routes. Then, if there is extra space open in a route, they could sell it to another airline. The idea of air route rights would effectively de-centralize the allocation problem. So does the idea of EM spectrum rights, especially since these rights are basically a local problem. No national body is needed.

  "i've driven in plenty of parts of the third-world where there are no lane markers on the roads, and most people still stay on the conventional side of the road, just like magic!"

  Heh. I would hazard a guess that this "magic" is really due to peoples' instinct for self-preservation. It's not at all analogous to EM spectrum "collisions".

  Published: August 29, 2009 1:10 AM

• Russ

  newson,

  Here's another way of looking at the issue. Let's take two hypothetical cases in your preferred "laissez faire regime".

  1) The good people of Newsonville, Oklahoma have a number of radio stations. The broadcasters have all "staked out" their frequencies and areas, without resorting to any notion of EM spectrum rights, just with "gentleman's agreements". Then along comes Wally "Big Daddy" Warbucks, who is decidedly not a gentleman. He decides to build a bunch of big transmitters on his property on the edge of town. They transmit noise on all frequencies in common use, effectively rendering the other broadcasters' transmitters useless. Why would he do this, you might ask? Maybe his plan is to ruin all the other broadcasters, effectively running them out of business. After all, if the listeners can't get broadcasts, the advertisers will stop paying the broadcasters, and they will shut down due to lack of funds (or lack of reason for broadcasting). Then Wally can start transmitting his own shows. If anybody wants a show broadcast, he will have to pay Wally. According to your philosophy, there is absolutely nothing wrong with this.

  2) The people of Newsonville have their land staked out, without resort to notions such as property rights, but with "gentleman's agreements" and fences. Then Wally comes along. He decides that Newsonville would be a great site for WallyWorld, a huge theme park he has envisioned. But the good people of Newsonville won't sell. So he hires a bunch of mercenaries to bodily force the people off their properties. The A-Team are, unfortunately, otherwise engaged, so the people of Newsonville are effectivey screwed.

  What is the essential difference between these two scenarios? I can't see any.

  Published: August 29, 2009 2:15 AM

• newson

  to russ:
  your first scenario isn't more credible than mine. why, if the interloper "big daddy" has shown to advertisers how vulnerable the medium of transmission is to greenmailers, would they migrate to him? and more to the point, why would "big daddy" risk spending vast sums in the first place to take on the incumbent, when "big momma" is probably coming right down the track (barriers to entry only being the cost of transmission gear).

  scenario two: it's no point arguing the difference between physical, delimitable (tangible) property, and electromagnetic waves, which you yourself have declared unownable, if utilizable.

  Published: August 29, 2009 3:24 AM

• Sasha Radeta

  Russ,

  In your example, Microsoft did not sell their DVD to you or your friend. They only granted limited use of their property in exchange for small amount of money (relative to what ownership rights over such valuable resource would cost another corporation).

  I don't mean to offend you, but it is funny how you can't accept the simple fact that property owners don't have to sign away their property rights when they allow limited use of their property. You don't loose your home-ownership by renting your house, just like Microsoft does not lose its ownership of Visual Studio by granting you limited access through "terms of use."

  Capisce?

  Published: August 29, 2009 9:18 AM

• Russ

  newson,

  "why would "big daddy" risk spending vast sums in the first place to take on the incumbent, when "big momma" is probably coming right down the track (barriers to entry only being the cost of transmission gear)."

  The point is, Wally's scheme may not be the best business plan, but under your philosophical system it is *just*; there is no reason why he couldn't legitimately try it. This could destroy the utility of EM broadcasting.

  "scenario two: it's no point arguing the difference between physical, delimitable (tangible) property, and electromagnetic waves, which you yourself have declared unownable, if utilizable."

  Whether EM waves are unownable is not the issue, it's whether EM spectrum rights are ownable. They effectively are, if there is a system of law in place to enforce them.

  Sasha Radeta wrote:

  "You don't loose your home-ownership by renting your house, just like Microsoft does not lose its ownership of Visual Studio by granting you limited access through "terms of use."

  This is an excellent example. Buying is much different than renting. When a person rents a house, he normally signs a rental *contract*, delimiting what his rights are. When you "rent" a DVD from Microsoft, where is the rental contract? The "terms of use" spelled out in the EULA (end user license agreement)? How is this a real contract? Has the "renter" of the DVD signed anything? If not, how can it justly be said that it is a legitimate, binding contract? Can an "implicit" contract (one that is not signed) justly be considered a binding contract? If so, why? If not, isn't a DVD "renter" actually *buying* the DVD?

  Yes, the law in the US currently says that a EULA is a legitimate, binding contract. But I've never been focusing on what the law *says*. We all know what the law says; we all know that if you try to "pirate" Visual Studio and Microsoft finds out, you could be in trouble. As you made clear with your George Orwell quote, this is restating the obvious. What I have been focusing on, and you have been pointedly ignoring, is this; is the law *just*? Why should Microsoft have the legal right to do what it does? Saying "It would lose a lot of money if it didn't." is not a valid justification to me.

  I now think I was wrong in saying that you are implicitly assuming IP, but this was not helped by your very unclear explanations (actually, not explanations, but just assertions). For example, you have never explained how the DVD is still somehow Microsoft's property. You just asserted that it was so. SK was more on the ball, I think, by saying that your theory is a sort of simulated IP by means of (implicit) contracts. Your theory still takes for granted that a contract like a EULA that is unsigned (and thus not agreed to by the renter in the same way that a signed rental contract is) is somehow still binding. Why?

  There are also problems similar to SK's painting example. Let's assume that a EULA dialog is a valid binding contract. Let's say somebody hacks the Visual Studio install program so it skips the EULA dialog, then puts it out on the Internet. I download it and install it on my computer. I did not go through a EULA dialog and click "I Agree", so I agreed to nothing. Can Microsoft go after me, even though I never agreed to anything? If not, then this contractual theory would be toothless in terms of preventing "pirating". If so, how do you justify this? If you say they have the right to go after me, even though no contract was agreed to, then you are now throwing out the idea of contracts as justification, and are back to IP as justification.

  Published: August 29, 2009 3:02 PM

• Russ

  Sasha,

  Here's another example I just thought of. Again, let's assume that the EULA dialog in the install program constitutes a valid contract, because clicking "I Agree" is equivalent to signing a contract. I buy a Visual Studio DVD from a store. There is a sticker on the box that says "By breaking this seal, you agree...". This sticker is not a valid contract. I have signed nothing, I have clicked nothing, I have agreed to nothing. At this point, since I have agreed to nothing and the DVD has been transferred to me anyway, the DVD is my property. I go home, open the package, break the seal that is not a valid contract on the DVD sleeve, put *my* DVD into my computer and come up to the EULA dialog. I click "I Agree". Is that binding? No. At that point the DVD is *mine*, not Microsoft's, so I am free to click "I Agree" and ignore it. The contract limiting my usage of the DVD has to be agreed to *before* the DVD is transferred into my ownership. If the contract comes after the DVD is transferred into my ownership, the EULA dialog contract is meaningless; they no longer have any property rights with respect to the DVD at that point.

  Would this hold up in a court of law? No, of course not, but that's only because the legal system today doesn't care about logical consistency. They only care about protecting the software industry. Silas' IP theory would be much more straight-forward and consistent than an implicit contract-based theory.

  Even if you accept that an implicit sticker contract is valid, that still leaves Microsoft open to the example in my previous post. If I install a hacked copy of Visual Studio, how can I be accused of violating a contract, implicit or otherwise, since there were no contracts to be seen?

  Published: August 29, 2009 3:42 PM

• newson

  to russ:
  i don't think their is any illegitimacy in "big daddy"'s suicidal investment plan, nor do i think we need "protection" from this type of behaviour. (in the same way than we need no protection from antitrust law against predatory pricing, also not illegitimate).

  the e.m. spectrum is inherently a fragile media of transmission because the space (not the atmosphere, as i carelessly said earlier) between the transmitter and the various receivers is common.

  i cannot see why people have any positive rights to receive e.m. transmission without interference. producers of e.m. material should not have the power to legally exclude competitors from a defined territory.

  the radio industry worked just fine until the feds intruded. this article may be of interest -
  http://mises.org/journals/jls/20_2/20_2_2.pdf

  Published: August 29, 2009 8:10 PM

• Sasha Radeta

  Russ,

  Unfortunately you persist on misrepresenting my arguments, while completely ignoring basic ownership right: to allow a limited access to your property, without signing away this property.

  You say:
  "Your theory still takes for granted that a contract like a EULA that is unsigned (and thus not agreed to by the renter in the same way that a signed rental contract is) is somehow still binding."

  That's not true. I claim that EULA gives only a LIMITED ACCESS or usage rights to Microsoft's property. Signer of this agreement may decide to transfer this purchased right to a third party. However, this third party NEVER PURCHASED anything from Microsoft! Thus any unauthorized use on his part, such as replication without owner's consent) is nothing but a trespass.

  Than you go on to say:
  I buy a Visual Studio DVD from a store. There is a sticker on the box that says "By breaking this seal, you agree...". This sticker is not a valid contract. I have signed nothing, I have clicked nothing, I have agreed to nothing.

  WOW! What a charade... First of all, you must have agreed on something, since this market exchange took place. Every market purchase is a voluntary exchange of buyer's property for seller's good and service. So now when you drop that "know-nothing" nonsense, we can go onto the next issue: what exactly did you purchase from Microsoft?

  If you have signed nothing and clicked nothing, how can you claim that Microsoft signed away their highly valuable creation to you??? How can you prove that Microsoft gave you anything other than strictly limited usage rights (of which they informed you)? You only paid a micro-fraction of what would cost say IBM to purchase complete ownership rights over such invention! Summa summarum, no court in the right mind would believe that Microsoft intended to sell all their ownership rights to you -- and that you were not aware of what you purchased.

  Please try to make a better argument next time. This seems like a waste of time and space on this blog.

  Published: August 30, 2009 5:26 AM

• Paul Lockett

  Sasha Radeta: "That's not true. I claim that EULA gives only a LIMITED ACCESS or usage rights to Microsoft's property. Signer of this agreement may decide to transfer this purchased right to a third party. However, this third party NEVER PURCHASED anything from Microsoft! Thus any unauthorized use on his part, such as replication without owner's consent) is nothing but a trespass."

  Of course, if the original purchaser merely copies the original DVD and gives that copy to a third party, the third party doesn't have any of Microsoft's property, so he hasn't commited any trespass.

  Published: August 30, 2009 6:01 AM

• Sasha Radeta

  That issue was already addressed on a different thread:

  - Since the contract violator falsely assumed ownership rights over the item he obtained only for limited use, he will have to pay for it. If Microsoft gets fully compensated (for multimillion $ theft), nobody will care about "third party" issue. So If we apply private property rights justly, this will be a powerful deterrence for anyone to assume that it is OK to trespass or steal such valuable property.

  - Furthermore, a third party that receives proceeds of theft or trespass will also be held liable. If this wasn't the case, we would have a legal money laundering for any kind of criminal enterprise. A person can't legally "borrow" another person's valuable property without owner's consent, generate millions of dollars in revenue, and then just return this property, claiming you compensated the owner. Your "third party" cannot reasonably defend himself by saying he believed in "bona fide" that some average Joe was the rightful owner of this property. It's like accepting a diamond ring from a homeless person and then claiming you believed this property was rightly his and not the result of theft of some source.

  See, this is a good logical test for your libertarianism: whenever you argue that the rightful owner should not be compensated for market services derived from his property, you must know there is something wrong with your analysis.

  Published: August 30, 2009 9:02 AM

• Russ

  newson wrote:

  "i cannot see why people have any positive rights to receive e.m. transmission without interference."

  Obviously, the case is utilitarian. If we don't assume EM spectrum rights, then we forego the usefulness of EM communications. I know you think EM communications could be useful without EM spectrum rights, but even most anarchocapitalists apparently don't find your argument compelling.

  Sasha Radeta wrote:

  "Unfortunately you persist on misrepresenting my arguments, while completely ignoring basic ownership right: to allow a limited access to your property, without signing away this property."

  I have never said that Microsoft cannot limit access to their property without signing away the property. I am only saying that for Microsoft to do so, a *valid* contract must be involved *before* the goods (the DVD and the money) are exchanged. Apparently, you are too dense to understand this basic concept.
  

  Published: August 30, 2009 5:17 PM

• Michael A. Clem

  I don't see how the bureaucracy that would be needed for EM spectrum rights would have to be more involved than that needed for keeping track of land boundaries. All it would have to do is track frequency range and coverage area for a given transmitter.
  
  If we assume the validity of EM spectrum rights, I don't see why private organizations can't do this instead of a government organization, no matter how small it may be. For example, who tracks ASCAP and BMI royalties in the music industry? The government doesn't do it.
  

  Published: August 30, 2009 5:32 PM

• Michael A. Clem

  If they went to court, wasn't that asking for the government's help in resolving their differences?
  
  Third party arbitration is a classic way of resolving differences, and doesn't necessarily require government--it's the process that matters, not the organization. Also, thanks to Newson for reposting that link above. A quote from it:
  
  And in the fall of 1926 the precedent for defining and defending those [spectrum] rights had been established in an Illinois court: Tribune Co. v. Oak Leaves Broadcasting Station. Writes Hazlett, “the classic interference
  problem was encountered, litigated, and overcome, using no more than existing common-law precedent” (Ibid., p. 149).

  Published: August 30, 2009 6:28 PM

• newson

  to russ:
  ...and yet the utilitarian justification for government e.m. regulation is shown to be groundless by the enormous success of unregulated radio until the federal radio act of 1927 changed the game.

  in britain, it was the success of pirate radio that made pop-music "popular" ("the boat that rocked" doesn't do full justice to the story).

  in italy, it was a similar story in the seventies. pirate radio provided programming that actually appealed to a market segment (youth) that wasn't catered for by the state-licensed networks. pirate radios didn't pull punches when it came to embarrassing the state authorities, whether for corruption or for incompetence.

  Published: August 30, 2009 7:09 PM

• Paul Lockett

  Sasha Radeta: "It's like accepting a diamond ring from a homeless person and then claiming you believed this property was rightly his and not the result of theft of some source."

  In that instance, if I still have the ring, the original owner is entitled to have it back. If, in contrast, the homeless person gave me some food that they weren't the rightful owner of and I ate it, it wouldn't entitle the rightful owner of the food to claim my body as partly their property, simply because the food is now part of it. This is one of the biggest problems I can see with your position, it assumes property rights have some kind of viral nature which, if put into practice, would be farcical.

  Published: August 31, 2009 5:41 AM

• Silas Barta

  Hey guys: I elaborated on my earlier position in a blog post here

  Published: August 31, 2009 6:50 AM

• Sasha Radeta

  No Paul, I don't assume that property rights "have some kind of viral nature" -- I only stated that property owner must be compensated for use of his property. By the way, your food example has no relevance for our topic and you would still have to compensate the rightful owner if you didn't eat in "bona fide."

  The issue here is that opponents of IP completely confuse what is whose property and how much valuable inventions really cost (as opposed to cost of a personal use that general public gets). You didn't point out anything farcical about my position, by the way.

  Best regards.

  Published: August 31, 2009 11:17 AM

• Paul Lockett

  Sasha Radeta: "By the way, your food example has no relevance for our topic and you would still have to compensate the rightful owner if you didn't eat in "bona fide.""

  So the person who took the food would have to compensate the rightful owner and the person who ate it would have to compensate as well, so the owner gets double compensation. I'm sure that would be a great scam for the owner to exploit, but it's not what you could describe as just.

  "The issue here is that opponents of IP completely confuse what is whose property and how much valuable inventions really cost"

  No, what people have been trying to explain to you is that the owner of physical property is its owner and that contracts which might exist between other people don't change that. The cost of inventions is of no relevance whatsoever to the issue of property.

  "You didn't point out anything farcical about my position, by the way."

  The fact that you can't see the farce that would result from realising your position speaks volumes.

  Published: August 31, 2009 1:06 PM

• Sasha Radeta

  Paul,

  Man, it's hard to explain how ridiculous your postings are... I'll try to keep it as simple for you as I can. I told you your food example has nothing to do with our topic -- and nobody mentioned "double compensation" (you are hallucinating again).

  You say:
  "No, what people have been trying to explain to you is that the owner of physical property is its owner and that contracts which might exist between other people don't change that."

  That is exactly my position! I say Microsoft does not loose its ownership of Visual Studio just because it allows the limited access to this property to people like Russ. And I also said that by borrowing this strictly limited access from Russ, you don't magically become owner who has the right to replicate that item. I also explained that it would be illegal for you to accept the proceedes of Russ's trespass in the form of illegally created copy and that you will be liable for all economic injuries zou create with this item.

  
  And once again: you don't need a contract with a third party to protect your property against its trespass (unwanted use of your property).

  By the way, you must be joking when you say:
  "Thee cost of inventions is of no relevance whatsoever to the issue of property."
  HA HA HA HA HA
  I basically said that owner must be compensated for the full price of the item that was stolen from him, while you argue that the issue is irrelevant. Of course you say that, since you advocate organized theft against productive individuals.

  Published: August 31, 2009 2:18 PM

• Paul Lockett

  Sasha Radeta: "I told you your food example has nothing to do with our topic"

  Well, I suspect you would say that, given that it completely annihilates your position.

  "By the way, you must be joking when you say: "Thee cost of inventions is of no relevance whatsoever to the issue of property." "

  Of course it is irrelevant to the issue of ownership. I either own something or I don't, irrespective of its value. Unless of course you think that theft is acceptable if the item being stolen has a low enough market value.

  Maybe you should stop before you embarrass yourself further.

  Published: August 31, 2009 4:04 PM