JackCuyler:Exactly. This is why I stressed the differences between the different IP laws, especially in response to the OP. Trade secrets could certainly be handled with contracts, as the OP suggests. Trademark violations are generally violations of contracts already, though not in a way the law currently recognises. Patents and copyrights have nothing to do with contracts.
That doesn't make any sense. A "trade secret" is still an idea/pattern. That is not property. You cannot have any "rights" around it that need to be (or can be) protected. And unless you want to make a case for the existence of "implicit contracts", as in, someone can be in contractual agreement with someone else without ever having formally agreed to it or even exchanging anything, there is no possible way you could claim "trademark violations are violations of contract".
I would really hope no one would be shortsighted enough to try to argue there can be contracts in existence to which no one has agreed, but which they can be held liable to.
John James:That doesn't make any sense. A "trade secret" is still an idea/pattern. That is not property. You cannot have any "rights" around it that need to be (or can be) protected. And unless you want to make a case for the existence of "implicit contracts", as in, someone can be in contractual agreement with someone else without ever having formally agreed to it or even exchanging anything, there is no possible way you could claim "trademark violations are violations of contract".
I objected to the term property in this context, remember? I don't think of any of it as property. There are four disticnt and very different attempts to restrict others' actions, which are normally lumped together and called "IP" -- trade secrets, copyright, trademark and patent. The OP asked about the feasibility of using contracts to replace "IP" laws.
It would certainly work for trade secrets. That is, what is normally called trade secrets and lumped in with the others as IP. Much of the law currently addressing trade secrets could easliy be replaced by contracts with penalty clauses. By saying this, I in no way mean to imply that the secrets being protected are somehow property. A contract between A and B in which B promises to refrain from sharing A's secret or B will pay A some agreed upon amount is perfectly acceptable, however.
It certainly would not work for patents and copyright, as there is no way the penalty portion of a contract could be enforced on non-signing third parties.
As for my calling trademark violations contract violations, I was talking about what the law currently referrs to as trademarks. I din't mean to argue that trademarks are property. I meant that what the law currently defines as trademark violations are very often fraud. The contract violation is not a violation of the trademark "owner"'s rights, but rather of the violator's customers.
faber est suae quisque fortunae
I'll explain my position better.
Statists sometimes talk about "social contract". Obviously citizens of a state did not really sign a contract. But in anarchy, people could sign a real "social contract". For example they may sign a contract that forbids the parties in the contract to sell heroin to other parties, or a contract that would require every party to the contract to appear before a particular court for jury duty once a year. There are many possible contracts which may involve a lot of people. One of such possible contracts is an IP contract. It might be possible that in anarchy a lot of people would sign such contract that would introduce a new type of property - intellectual property. Since this is a consentual contract signed by people without coercion, it would be completely legitimate, and it could solve the practical/utilitarian problems many people see in the absence of IP rights.
I technically agree with you Eugene, but people here seem to think that to enforce contracts there must be "actual" property rights being infringed. If you copy an idea after signing the contract you are not infringing actual property rights, so it is apparently not enforceable. That's why I argued that you could have some form of property at stake (tiny bit) so as to make the contract enforceable.
That's very limiting and wrong in my opinion. Once a contract was signed, it is a sign that a mutual agreement was reached. A voluntarist society is a society built on consentual agreements, regardless of whether property titles are parts of the agreement or not. If two parties agreed on something, there is no aggression when the contract is being later enforced, at least in my view.
How would one a) calculate damages (penalty clause?), and b) enforce the contract on non-signing third parties. As an example of the latter, suppose I, a non-contract-signer, found a book sitting on a park bench. Am I to be prevented from making copies of this book and giving them to my friends?
so..... if we both sign a contract that I will stop breathing for an hour and if I "lose", you can kill me, and when I really breach the contract and started to breath before one hour passed, according to you, you can come and kill me, EVEN if I no longer want to be killed (I fear of death, duh)?
(english is not my native language, sorry for grammar.)
Am I to be prevented from making copies of this book and giving them to my friends?
Only if you signed the contract. That is why it's incomplete. Yet it's something.
you can come and kill me, EVEN if I no longer want to be killed (I fear of death, duh)?
Theoretically, yes.
As you can see, this is why this "contract to protect (non) property" aka "rights that don't exist" is so full of holes it's completely useless. You can't build a house on a foundation that doesn't exist.
I fail to see how. It may be impractical, but is it outside of legal ethics?
To save face: that's why I'm here, I guess...? To learn...
Wheylous:so full of holes it's completely useless.I fail to see how. It may be impractical, but is it outside of legal ethics?
so full of holes it's completely useless.
Maybe I used bad syntax. I meant would it be immoral.
Can you explain how Eugene's contract for pseudo-IP would be worthless?
Wheylous:Maybe I used bad syntax. I meant would it be immoral.
No your syntax was fine. If you mean your diction was off, fine, but there's still no difference. Read what was said again. It basically reads:
John: "it's impractical."
Wheylous: "I don't see how. I mean it may be impractical, but is it outside of legal ethics?"
J: What does legal ethics have to do with it?
W: Maybe I misspoke. I meant, "is it immoral".
I'm gonna ask you again, what the hell does ethics or morality have to do with practicality?
I already did. As did others throughout this thread. In fact you already asked me about this I responded to you directly , at length. There's no way to enforce such a contract and the more ways you try to tie it all together the more of a web you get stuck in.
If a group of people decides to uphold some made up property rights rules, or any other kind of special rules, why would you have a problem with that? Are you against voluntary agreements?
How do current IP protection laws work, then? Companies obviously can't chase down every single lawbreaker, and companies wouldn't be able to do it under AnCap either, but it's something.
what the hell does ethics or morality have to do with practicality?
We're discussing some ideal society and we're asking questions like "should x be legal, can we morally do y, etc." In the same spirit I'm asking whether pseudo-IP contracts would be morally enforceable. As in regardless of whether it is worthless, can it still be done (because I dispute your claim about its practicality)? It's like me asking "can a person buy one square yard at a thousand different, scattered places around the earth" and you saying "it's impractical" and me responding "but is it legal." The question of practicality is an afterthought that is up to the person who wants to create this contract. What I'm interested is whether you could have private courts enforce it (morally, not practically).
I do plan to read the literature you suggest, simply not in the next few days.
John James:The concept of "intellectual tangible property" is illegitimate, therefore any sort of laws protecting "intellectual tangible property" are illegitimate.
Property evolves as means for conflict resolution. In a free society where selling someone else's writing/information/code without his approval, or eating red-heads for dinner is frowned upon, successful courts would create precedents (law) reflecting those norms. The ones not reflecting such norms would go out of business. Superior norms spread by creating more flourishing societies which take up more physical space and attract more human agents under their fold. If intellectual property is superior means of conflict minimization/resolution (which I predict to be the case in a world with exponential rise in production and exchange of information ) they would become accepted norms in societies which survive/flourish. If not, then they won't. Societal evolution doesn't give a rat's a** about anyone's particular view on "illegitimacy".
there are, to my knowledge, two types of agreements (contracts). Those that involve property and those that do not. The former are enforceable, the latter not so much..meaning, that you have to be ok only with ostracism and can't take some property from contractor if he broke a mere promise (without stealing anything from you). Yes, time is scarce but it's no property.
Once again, if I haven't stolen anything from you, you can't legitimatelly steal from me, no matter what contract says (unless I do not object, but then that wouldn't be stealing, now would it?).
MaikU:The former are enforceable, the latter not so much.
^This norm too (about what contracts are enforceable/legitimate and what aren't) competes in the realm of societal evolution.
..meaning, that you have to be ok only with ostracism and can't take some property from contractor if he broke a mere promise (without stealing anything from you). Yes, time is scarce but it's no property.
Precedent (law) is nothing but objectification (realization, "legitimization") of widespread ostracism/frowning. Market-driven insurance agencies and courts can not evolve conflict minimization/resolution precedents/laws which are ostracized by the market that gives them business.
Wheylous:How do current IP protection laws work, then? Companies obviously can't chase down every single lawbreaker, and companies wouldn't be able to do it under AnCap either, but it's something.
Sigh.
Let's try this again. You buy a widget. When you buy a widget you explicitly agree to a contract that stipulates you transfer title of $x to the seller when you copy and distribute the widget. Bryan however did not buy the widget. He has no contract with the seller. He downloaded the widget from the Internet. He decides to start selling the copies of the widget and hosting a link to it on his website. The seller finds out Bryan is doing this. The only way they have any recourse is to prove he has a contract with them that transfers title of something to them in the event he sells their product. But no such contract exists. Imagine Bryan's link gets a million downloads...and 25% of those people also distribute the widget on their websites. Now we have 250,000 people, none of which with contracts, distributing the widget. Even if the seller could find them all, it makes no difference because they have nothing to gain from doing so. Again they can only gain if they can prove someone is breaching an agreement. They have virtually no way of doing this. As I said, the whole system of contracting in this context is basically useless. Again, you cannot build a house on a foundation that doesn't exist (i.e. ideas/patterns are not property. They are not refore you do
Current IP laws do not work this way. There are no contracts. The copyright holder is the sole owner of the work, and holds a de jure monopoly on its use, distribution, and development. Anyone the owner catches even using the product in an unauthorized way, can be sued. In otherwords, it under the current system does pay to search out people. There is a way to enforce such a rule.
We're discussing some ideal society and we're asking questions like "should x be legal, can we morally do y, etc."
"We" are doing no such thing. You are the only one who has brought up morals in this entire thread. You were the first to introduce the topic, and the only time anyone even mentioned it was when they were responding directly to you. Again, this discussion is based on whether or not contracts can be used to effectively create/protect "intellectual property rights" in a society that does not recognize such things. Legality, ethics, and morality have absolutely nothing to do with any of that. I made the statement that, no, contracts to do not work because this "contract to protect (non) property" aka "rights that don't exist" is so full of holes it's completely useless. And you're response was "I don't see how." And then you change the subject to ethics. And I don't know how else to say this, so I guess I just have to keep saying it: being ethical or not makes absolutely no difference to the subject's uselessness. It being moral or not, makes absolutely no difference to the subject's uselessness. Therefore, the fact that you don't know whether attempting to contract "IP rights" into existence is moral or ethical should make literally no difference as to you seeing how it is useless. Again, it's literally saying:
John: "It's a useless venture".
Wheylous: "I don't see how. Is it not ethical or something?"
No. Ethics has nothing to do with it. It's useless because there is no use in doing it.
In the same spirit I'm asking whether pseudo-IP contracts would be morally enforceable. As in regardless of whether it is worthless, can it still be done (because I dispute your claim about its practicality)? It's like me asking "can a person buy one square yard at a thousand different, scattered places around the earth" and you saying "it's impractical" and me responding "but is it legal." The question of practicality is an afterthought that is up to the person who wants to create this contract. What I'm interested is whether you could have private courts enforce it (morally, not practically).
No, what you're doing is like asking:
"Can I lift the Earth up on my shoulders for a few hours?"
"No, you can't."
"I don't see why not. You mean it would be wrong to do that?"
Then perhaps you should hold off on the conjectures until then.
z1235: John James:The concept of "intellectual tangible property" is illegitimate, therefore any sort of laws protecting "intellectual tangible property" are illegitimate. Property evolves as means for conflict resolution. In a free society where selling someone else's writing/information/code without his approval, or eating red-heads for dinner is frowned upon, successful courts would create precedents (law) reflecting those norms. The ones not reflecting such norms would go out of business. Superior norms spread by creating more flourishing societies which take up more physical space and attract more human agents under their fold. If intellectual property is superior means of conflict minimization/resolution (which I predict to be the case in a world with exponential rise in production and exchange of information ) they would become accepted norms in societies which survive/flourish. If not, then they won't. Societal evolution doesn't give a rat's a** about anyone's particular view on "illegitimacy".
You have this axiom that only property title transfer contracts can be legally enforced. I disagree with this. This limits the ways in which people can agree with each other. Any contract that was not signed under duress should be legitimate, and thus a contract that creates a new form of property rights, or stipulates any kind of rules or relations between the two parties should be acceptable.
Eugene:You have this axiom that only property title transfer contracts can be legally enforced. I disagree with this. This limits the ways in which people can agree with each other. Any contract that was not signed under duress should be legitimate, and thus a contract that creates a new form of property rights, or stipulates any kind of rules or relations between the two parties should be acceptable.
Why?
Because that's a non aggressive tool, it is a tool based on a consentual agreement, and anything that doesn't involve aggression should be legitimate.
Eugene: ...and anything that doesn't involve aggression should be legitimate.
...and anything that doesn't involve aggression should be legitimate.
don't fall into absolute propertarian trap, dude :) before it's too late.
Eugene:anything that doesn't involve aggression should be legitimate.
you should really listen to Maiku. To be honest I don't know why you're so obsessed with trying to make IP "work", in essence, trying to make something that isn't property be property and protect it. You already tried this in multiple threads (one of the more involved being here) and every time you were pressed for an actual argument in favor of IP laws you couldn't even come up with one, even though that was the title of your thread. Now in this thread you've simply reanimated the same concept but instead of calling it an "argument in favor of IP" you've repackaged it as an "alternative to IP". Did you really think putting lipstick on a pig was going to fool anyone here?
If you expended this amount of effort on actually producing something, you'd probably be a lot wealthier.
Sorry, but what exactly is an absolute propertarian? I thought it was a person who didn't believe in abandonment :P
John James:
Are you having a headache or are you just disagreeing with something from my post?
Wheylous: Sorry, but what exactly is an absolute propertarian? I thought it was a person who didn't believe in abandonment :P
I call people, who belive that anything that is voluntary should be legitimate and/or that there is only property rights and ethics/morality is completely irrelevant, absolute propertarians. How Brainpolice would say, they reduce everything to property rights.
I definitely do no think that property rights are absolute or anything, yet I do believe anything that is voluntary should be legal. Why would any libertarian think otherwise? Aren't we against aggression, and aggresion only?
I thought the property reduction was standard in libertarian thinking...
About aggression: Yes, but define aggression :) Left-libs believe property protection itself is aggression. And even right-libs don't agree completely on all property matters (though they are generally coherent).
Don't get me wrong, I also reduce almost everything to property (with few possible exceptions), however I do not reduce contracts to property. For me contract theory is something else entirely. You can sign a contract even if it has nothing to do with property.
Wheylous: I thought the property reduction was standard in libertarian thinking...
maybe among some libertarians that would be the case. Actually mises forum is famous in this line of thinking.
Wheylous: Left-libs believe property protection itself is aggression.
You are generalizing. Surely not all believe in that.
The only way you would be able to protect trade secrets would be with private property laws. With big fences and expensive vaults. If you invent a hammer and start to sell it, you can not expect that no one is going reproduce it. If your invention is advanced like the iphone, not anyone can just go and copy it with the app store and exact same hardware and software etc.
The real market value for an invention comes from its producers ability to make it available or it comes from the inventions availability at a reasonable price. The alternative to IP is an increase in competition. Where innovation is not hindered by registration legislation or licensing and monopoly laws.
When i argue with pro IP proponents i find it interesting that every argument they come with, i seem to able to twist it in to the complete opposite of what they arguing and still convince them that IP holds back innovation.
Yes. But they have a lot looser property than we do here. For example, many don't believe in rent. Many don't belive in squatter eviction.
i seem to able to twist it in to the complete opposite of what they arguing and still convince them that IP holds back innovation
There is no natural social order that dictates that we need innovation, so the argument is utilitarian. You can also argue that living in communism holds back innovation, but AnCap allows for the creation of Communist communities.
If your invention is advanced like the iphone, not anyone can just go and copy it with the app store and exact same hardware and software etc.
Technology today doesn't allow us to do this. In the future we might be able to copy objects in some copy chamber. But I believe IP shouldn't exist then either. Because you're not stealing anything. You're making your own thing.
Non-sequitor. Once you start selling your creation, it is no longer a trade secret.
JackCuyler: Non-sequitor. Once you start selling your creation, it is no longer a trade secret.
Yes, that is the point I was trying to make with the hammer example. But for example an Intel chip, not anyone can just reproduce it and start selling it. But a small amount of other companies and limited amount of individuals can reverse engineer it and that happens already with IP laws. So when it comes to easily producible products then there is no expectation that it will not be copied and resold. The competition comes down to the availability of the product at a reasonable price and the production costs associated with making it available. So they might be selling the same product by IP standards, but for one it is better quality at a better price, because of a production advantage for example. But for the intel chip, there is an inherent secrecy to the product that prevents it from being copied easily. I was trying to describe how it would be without IP regarding products being copied.
But the hammer could also have an aspect of secrecy to it, as it could be made out of a new material that other companies would have to try and reverse engineer. Then the producer could keep the ingredients and chemical make up of the material a secret by using private property laws.