Devil's Advocate

We can agree they aren't arguments that address the positions against IP presented in this thread. No, I don't believe you do know. You certainly haven't addressed the anti-IP position in this thread. This is just a return to dismissing objections about monopoly and harm by claiming these terms don't really apply to IP. The fact remains they do. I don't care what you think the Materialist definition of harm is. Choose a proper legal definition and defend it if you can. You certainly can't recover damages from IP infringement without one.

I'm submitting the following because I need to take a break, and I want to sum up what I see as the anti-IP position for future reference. A just application of security cannot prefer one to the disadvantage of others. Copyrights, trademarks and trade secrets form discernible fences of security around material assets, the same as physical barriers around real estate do. Proper barriers delimit what is yours from what might belong to anyone else. Improper barriers attempt to own both sides of the fence, and can be expressed as, "What is mine is obviously mine. What is yours we can negotiate." The anti-IP position supports an individual's right to property, but not the ability to coerce others in their pursuit of property which is presumed to contradict a just implementation of the right to life. To assert a right to prohibit others from their own actions, those actions must demonstrate some negative effect on the prohibitor. The presumption is that copying patented material does this, and that is what is being challenged here. How exactly is the original use damaged by duplication? Owner A creates prototype A as new property and is entitled to duplicate additional property in the form of A1 thru Ax without objection. Neighbor B, seeing A33, attempts to recreate it as his own property and is prohibited from doing so on the premise that B1 is actually A33 having been removed from Owner A's collection of real property without permission (meaning by force). The bone of contention in this debate is whether "without permission" = "taken by force". Taking your plow* without permission is an illicit action accurately described as theft because you can't use it until it has been returned to your possession. Taking the future use of property that has yet to materialize is something else entirely, so your claim others property based on a likeness to your own is dubious at best. It remains to be proven that any actual damage has occurred to your own property that warrants restitution. IP law attempts to restore the value it would have had, had you duplicated it yourself, but this becomes problematic because actual value only occurs at the point of sale, and you didn't actually duplicate it yourself. And so your collection of property grows something like: A1, A2, B1-Bx, A3, C1-Cx, A4, A5, Ax... you get the idea. Actually you own not only the idea, but everyone's future mental and physical effort to recreate your property. Because copycats are presumed to be bad for business, we embrace coercive, artificial monopolies that are known to be bad for business... for a time, but not forever because that's bad for business too.

I dispute the relevance of your account to my position that a right to create implies a right to recreate. If you are merely suggesting that an argument against IP relies on forcing private knowledge into common usage, then yes I am disputing that too. IP conflicts with principles of non-aggression and honest trade, and until its use of force can be accounted for by advocates, as has been done by those who oppose it, there's not much left to discuss.

Yet the reality is that knowledge spills from private to common without being forced, hence the issue of responding with force where none is warranted (which has yet to be addressed by advocates like yourself; just sayin'). That a person can dictate what others must do with knowledge obtained by their own effort, or given to them with a duty to obey the will of their "benefactor" or else... well, I don't want to get all biblical with you, but that kind of power is what Locke argued against. Your repeated effort to join Karl and John at the hip doesn't make an argument about IP in the Commons more credible, or relevant to how individuals in a free market society ought to behave. Suffice it to say, that a person can own an idea doesn't imply that person can then dictate what others can do with the same idea arrived at honestly by their own effort. You're up to you neck in forbidden knowledge and don't even know it.

You cannot understand the argument against IP by presenting copying as a collective right. A right to create implies a right to recreate; that's it. There's no collective right to anything because only individuals have rights. If a creative individual can prove a negative effect on his property when another individual duplicates it, then we have something that justifies responding with force. Otherwise IP remains unjustified as a coercive monopoly in a "free market". Can you indicate the negative effect of copying property that belongs to someone else?

Using some form of anarchism doesn't improve it much. Since when is not wanting to become an unwilling participant to a coercive contractual obligation, a Marxist/anti-capitalist position? And I guess we just dismiss Ayn Rand's separation of business and state as well to apply the force necessary to secure IP in a FREE MARKET.

If you came across a piece of Reardon Steel honestly, say by purchase or by scrap, would you know how to make more without using any mental effort? Would producing more require no additional materials and physical labor? These are the qualifications to acquiring property, are they not? A steel worker in his factory is under a different obligation. All the steel that Hank or his employees make is obviously his. But what is the moral lien that labor places on others not to produce by their own mental and physical labor? This is usually where an advocate will reverse the question by claiming anyone who is neither customer nor employee of Reardon Steel expects Hank to surrender his steel as loot for their benefit. I think a more honest view is this is not the case; they expect not to be forced into submission as Hank was not. Let Hank continue to earn his property, steel bar for gold, in a free market, and let others join as competitors or customers as they choose.

For extra credit we should examine whether Hal Holbrook's performance of Mark Twain was inherently illicit re: IP. After all, why ought he be allowed to profit from recreating the life and works of such a great artist as Mark Twain? Has he no shame?! Did he pay some tribute as inheritance to any of Twain's surviving relatives?? Bad human, bad! Don't you copy me!!

The issue continues to hang on sanctioning the use of force in response to the act of copying without permission. If such an act is inherently illicit then we'd all better get use to paying it backwards.

OK, now we’re getting somewhere... perhaps... Now that New Buddha doesn’t mind working with fictional thought experiments, if we follow the pattern he’s pointing to, Man A blows up Plow B. And this would be consistent with the kind of restitution IP law provides… well, perhaps not the use of explosives… Man A could legally have Plow B destroyed, restrain Man B from making any additional plows, and force Man B to hand over whatever profit was obtained from sales of Plows B1-Bx to Man A. If Man B refused to comply he would go to jail. Justice would then be served and dream_weaver’s “guess who” would que His choir group to sing! For the sake of covering those other options New Buddha points to, Man A could walk away from his plow, leaving it to rust in the field, or if Man B was really a turd and threatened to expose Man A’s indiscretions to Wife A, force him to give Plows A1-Ax to Man B. In that case, dream_weaver’s “guess who” would que that other guy to stoke the furnace for another guest. The question remains, "Does Man A require the freedom to forcibly prevent Man B from building Plow B?" Please respond in a manner consistent with the terms property (as an implementation of the right to life) and theft (by legal definition). Please don't respond with, "Because IP law says so".

You've argued against the fact that IP law establishes a monopoly, that establishing harm is necessary to prove infringement, and now you're trying to dismiss opposition by pointing to philosophical materialism for some reason that escapes me at this point, but I'll try to respond in this way... Patents, copyrights and trademarks are all applied to material things, and trade secrets are descriptive of the process to construct material things. There's nothing in the possession of material things that implies acquiring them doesn't involve an intellectual process. Arguing that all property is intellectual simply means that property begets property without accounting for how the recreation of property without permission is an inherently illicit action. The case against IP is well represented by the Original DA's example (among others) which seeks, at a minimum, one credible example of why a property owner needs to prohibit the recreation of his property by others without his consent. I am content to wait for some response on this point before proceeding.

You're not improving your chances of getting a response other than, "phooey" from me along this line of questioning. However it is generally acknowledged that Locke, believing that thinking could not have arisen from inanimate material, accepted the view of a living creator. His contribution was to challenge the prevailing view that property and freedom were divinely revealed to kings, by asserting that reason was the primary tool for revealing knowledge about how property and freedom are acquired by individuals. Ayn Rand's primary contribution was to acknowledge his in these areas of knowledge, and that she was an atheist is not a point of novelty.

So Locke's laborer was mindless? Is that seriously what you're saying now, that Ayn Rand's contribution was to put a brain in the scarecrow so that he could understand that he needed property to exist?? I can't even begin to respond to this without frustration so I'll just say, "Phooey!"

The quip doesn't seem to relate to your buildup, which (as I read it) is a repeated combination of, "There's still plenty of room to create new products along side of what IP law secures" and, "opponents aren't really addressing what IP is". Pointing to the quip then suggests that only a looter would object to tolerating the legal monopoly IP secures for its "victims". The P in IP means property, and Ayn Rand's use of that term in the context of claiming a right to it is very clear: "Any alleged 'right' of one man, which necessitates the violation of the rights of another, is not and cannot be a right." IP law imposes an unchosen obligation on others not to copy the original as a means to their own property, and on this point Ayn Rand is equally clear: "No man can have a right to impose an unchosen obligation, an unrewarded duty or an involuntary servitude on another man. There can be no such thing as 'the right to enslave.' " John Locke's definition of property (which you credit to the degree that it doesn't get in the way of your advocacy for IP) is also clear: "Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature hath placed it in, it hath by this labour something annexed to it, that excludes the common right of other men: for this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good, left in common for others." In Locke's argument a man enters a field and finds an apple (another great computer reference), picks and eats it and claims it as his property because it is no longer of benefit to anyone else and there remains "enough, and as good, left in common for others." With IP, the same man enters that field, picks and consumes his apple, and then claims all apples are his property (for awhile) and invites others to buy apples from him or go find another fruit to eat. You may argue that IP isn't common to all men, that it begins as King's property and without his consent, any use of it begins with theft. In that case then you still have to explain how producing two of something is a theft of the original, or how copying defrauds the King of his original and his future use of it. You have to prove the King has been harmed to collect damages, which is of course is the legal remedy for IP infringement. As I see it, arguments for IP have been reduced to a rather weak defense of the status quo, ignoring or dismissing obvious contradictions in the form of time lapse ownership and merging material wealth with immaterial desires for compensation. Real property exists. It's out there. Go and see for yourself.

We have examined several examples where the complexity of design makes it unlikely (but not impossible) that infringement of IP might occur by someone figuring out how to recreate a patented product on their own. I’ve used AutoCAD for over three decades (fully licensed) and am a capable programmer with an AS in computer science, but on my own couldn’t reproduce the entire code of every programmer who developed AutoCAD. Nevertheless, if I could reproduce any part of it by my own knowledge and effort, and that part infringed on Autodesk’s patent, it would be an immoral act of force that prevented me from claiming that part as my own property. I obtained it by the same honest means Autodesk programmers used, therefore I earned my property as they did. But they were first, so I must not get in the way of their pursuit of property... I recently saw an advertisement for a new product, something looking like a straw with a forked end, used to remove ticks by slipping it between the head and skin and twisting ticks away. Having removed a few ticks in my day, I recognize the process. Nothing sophisticated about the device, but definitely a point of novelty, being quite different than tweezers or fingernails. Presuming this tick removing innovator has gone to the trouble of patenting his product, the only advantage he has over me is that patent. I don’t need to figure out how or why his product works, and I certainly don’t need an AS degree to reproduce it. But I cannot because he was first, so I must not get in the way of his pursuit of property... Tick removal is less complex than CADD software, but the premise of IP remains the same; reward the first by restraining the rest. We can go down the list, and have indeed covered much of it in this thread, but advocates continue to dismiss the most basic premise of a right to property; that the rights of one man cannot violate the rights of another man. The preference for the property of innovation contradicts this, so it doesn’t really matter how much good has come by the relatively small abuse of others. The abuse is real and contradicts the just application of a right to life… But we must not get in the way of an innovator’s pursuit of property. Is this not just another concession to royalty? A little monopoly in a free market, like a little government regulation, sounds tolerable. Perhaps a little poison is too?

Edits 1 & 2: Going back to the office we are familiar with prior to the digital age, design prints were obtained as hard copy and manually traced by novices for the most part. The tracing was only property to the degree that it wasn't presented as ones own design. Copying with the intent to defraud stands against every law, rule or custom respecting property, therefore is illicit. At the same time, copying is essential to learning, and is certainly why novices are hired in the first place; to learn a trade. Later on the novice, now a designer in his own right, cannot help but duplicate designs that meet the goals of a particular project. The goal not to reinvent the wheel with every client, but to transform the best idea into property. If the designer who trained him is any good, the former novice will copy his designs whenever they can't be improved upon. That still involves his own effort, materials and judgment, and results in properly earned property. The legality of IP today is at least too restrictive with regard to fixing the market, and I think actually infringes on a right to life where others are prohibited, prior to any agreement, from recreating existing property for themselves.

The Original DA* and myself aren't arguing against private property; quite the opposite. A DVD (software) and a GMC (automobile) are both representations of actual property being properly transferred to willing customers, who then assume the obligation to hold up their end of the deal; an honest trade. Neither of us are arguing that we ought to be able to make a DVD of a GMC to avoid dealing with the manufacturer. Even if we could, that would still represent an illicit claim to property. Not because "the law" says so, but because the right to life says so; the "effort" of a thief or forger is an effort of aggression against others that HARMS them in the process. The anti-IP argument that has been presented (from the start) is limited to the premise that copying the property of others isn't delimited to immoral actions of the kind that constantly pop up in this thread as the advocates' presupposition. That is what you, et al, are missing. IP won't allow Plow B in any form but that presented in the prototype owned by Man A, e.g., A1, A2, A3... Ax. Man B is prevented (for a time but not forever to avoid the ills of monopoly) to even make the effort to reproduce the same plow as his own property; he must buy Ax from Man A or go without. And the weak response that, "Well, let him make another plow then. One that isn't the same", doesn't address that he remains constrained by unjust law from implementing his right to life according to his own choice and means. Not because he isn't capable of the task without aggression, but because the innovator has chosen to place a gun against his head rather than take his chances in a free market. The fact remains, if Plow A (or AutoCAD) can be reproduced by another man (in every detail) as Plow B, nothing has been taken from Man A but a coercive lock on an otherwise free market. Man B may not choose to market his plow, but it remains a recreation of property by his own effort and materials, the existence of which represents no material loss to Man A. -- * my apologies for carrying the argument forward in your absence. You will, of course, correct any misrepresentations I might make on your behalf...

The first part is true; you're conclusion is false. No; outside the limited non-commercial use allowed by the software manufacturer. The whole point of a just application of rights is that the proper enjoyment of the right of one doesn't impede (or contradict) enjoyment of the same right by others. I would consider your example to include a breach of contract and the reception of stolen goods with the intent to defraud the software manufacturer. No; there should be no limitation on a software manufacturer's design or efforts to limit use by agreement with willing customers. But why should they bother with DRM if (as you assert) copying by unwilling customers doesn't harm Autodesk?? On a side note, I don't know how long you've been licensed with Autodesk, but your example suggests being aware that they tried this once, and removed (within a year) it because it impeded the sale of their software, i.e., they... what's that word? oh yes, HARMED themselves by doing it.

Strictly speaking, yes; a right to create* implies a right to recreate*. The creation of property, as an implementation of the right to life, doesn't distinguish between new and old goods; only that you labored to earn your possessions without harming others in the process. Therefore the creation of property by one doesn't logically prohibit the recreation of property by others, so there's no moral obligation to ask permission for copying in order to create property for yourself. I had been struggling with this earlier, but have been recently assured that no one is harmed in the process. You'll have to ask one of IP's advocates why originators try extort money from copiers, or throw them in jail, if it's true that IP doesn't respond to copying as some kind of material loss. I have no idea why it upsets them so at this point... Creative tantrums, I suppose. At least we are now all agreed that there's nothing aggressive about copying, and that's progress of a sort. -- * feel free to substitute create and recreate with Kate and dupliKate, or any other variation that implies an original work and reproductions of that work.

If having IP doesn't secure a recovery from damages (harm), then why have it? This new advocacy position of harmless infringement of IP rationalizes using force simply because the law sanctions it; coercion isn't bad, it's profitable. Every time I put a gun to someone's head to prevent them from competing with me, I make more money. Genius! You've left out any reference to trade secrets as part of the list of things IP secures in your recent posts. Shall we dispense with the term security as well? I mean if having IP allows using force for reasons other than retaliation, are we even talking about security anymore? Having proven copying doesn't harm innovators, and reducing advocacy for IP to a defense of the status quo, it's time for a break.

Oh ho! So harm isn't relevant to justifying IP infringement... Is that so? So in the following explanation of how issues of IP infringement are addressed by legal firms, the repeated term damages means something other than harm?? "The theft (or ‘infringement’) of a patent, copyright, trademark or trade secret (collectively known as intellectual property) is typically handled as a civil matter. That is, the owner sues the infringer and attempts to collect financial >> damages << and to have the infringing material removed or destroyed. The infringer is liable for the >> damages << and must follow court orders." http://www.intellectualpropertylawfirms.com/intellectual-property/ip-crimes.htm Well OK then, as they say, "No harm no foul". Glad we cleared that up

That the expenditure of time and effort to create a new product logically imposes a right against having it copied. Thank you, I wasn't clear. IP prohibits prototype 'A' from being duplicated as 'A1', 'A2', 'A3', etc., by anyone but the patent holder for prototype A, without proving any harm is done to said patent holder by duplication without his consent; harm being defined as a loss of material benefit to the patent holder by competition in an otherwise free market. Better?

OK, but what I'm saying (or trying to express) is, property doesn't exist without manifestation. An idea plus physical effort creates the manifestation of property. It's not like, "I think, therefore it is." IP jumps from the prototype to the end of the assembly line and counts it all as earned profit, and the problem is the profit hasn't been earned yet; it hasn't manifested as property. So you can't say there is some kind of right to recover that which has yet to materialize just because you really need it to materialize. Reality doesn't work that way, unless you force it to at someone's expense.

Yes, I think you respond to what has become the tacit argument for IP, that copying is a forgery of innovation and theft of what ought to go unimpeded to the innovator. And yes, Man B is equally guilty of theft by using his own effort to deny yet another sale to the cost of innovation. Denying compensation to innovation apparently halts progress... except it doesn't really. About the worst that can happen is that innovators might actually need to develop some marketing skills to present their new idea, and perhaps Man B can help them with that without putting a gun to his head. Michelangelo creates David and is immediately surrounded by sculptors recreating David because Mike neglected to inscribe a (C) on his David's heel. Achilles ought to have warned him about that...

Legal definition of harm: "Harm means any injury, loss or damage. It can also be any material or tangible detriment. There are different types of harm like accidental harm-where the injury or damage is not caused by a tortious act; bodily harm-where there is some physical pain, illness, or impairment to the body; physical harm-where there is physical impairment of land, chattels or human body etc." http://definitions.uslegal.com/h/harm/ -- injury, loss, damage, material, tangible, physical pain, illness, impairment, land, chattels, human body These are the terms used to describe harm. Advocates are free to choose any or all, but please, oh please, choose something to describe how copying IP harms the owner.