The concept of Ownership

[Olex]

Mrocktor, I've read through the thread you linked, however the discussion of this topic in that thread was stopped. So, I'll continue it here with my own questions. For the clarifications, I have some disagreements with your view, but my own one isn't fully clear to me yet. So, I'll bug you for now and see if I arrive myself at something useful.

Why does he not own the whole river in every respect? Because the whole river in every respect is not what is needed for him to be able to produce as he was.

This seems like a weird reason for me. It sounds like the cause if his need to continue to do what he did a day before with the river. Furthermore, it also looks to depend on the degree that he used that river. So, if he used to a small degree yesterday, he isn't entitled to a larger use tomorrow?

But then your example with fish is different. Applying my above understanding of your point, it should be that a fisherman is entitled to not have anybody affect the amount of fish the fisherman can fish that he fished yesterday. However, couldn't this be easy to be affected by any other fishermen who arrive later upstream? Say, they fished some upstream, this would then cause the original fisherman to be able to fish slower or possible affect the kind of fish he can wish.

Granted, given one-man fishing the effect would be highly small if at all. However, in principlle wouldn't this be a problem? Or to extend the case. What if a large company moves way, way upstream and begins to fish a lot. Even if they don't wipe out all the fish, it would still affect the original fisherman by, say, making his effort return half of his usual fishing returns.

Now, you said wipe out (complete, I assume) would be breaking his rights. What about half of his usual return? A quarter, etc, etc. Where does the line begin if at all?

Also, does this mean that morally each large fishermen company who stops by any river should first check entire river downstream to ensure that it hasn't been used by somebody else already before beginning fishing themselves? And also check that fishing amount wouldn't significantly affect those who fished before? I'd imagine this would be a lot of pain to go through, especially if those other fishermen didn't leave a mark with some contact info (after they went home after fishing in that river).

(The following is your quote from the linked thread.)

If you find a gold vein and build a mine, you most certainly have a right to the whole of that deposit. A deposit you found. If a huge mining company hears about your discovery and strip mines the deposit from the other side, a crime has been commited.

I'll apply here same problems as I did above.

A gold vein has a specific shape and location underground. One can analyze and see if it has any disconnected parts. Let's assume he discovered several such disconnected parts, but built a mine that doesn't cover them all. Does somebody else have a right to mine others, since he isn't using those (yet?) ?

Does the size of the gold vein make any difference?

Does the amount of gold the discoverer can mine per day make any difference? What if his rate is slow to such a degree that he can't possible mine out all of it in his life time, can others start digging, too? I based this question on your words: ".. is not what is needed for him to be able to produce as he was."

In the same regard, does the mining speed of others make a difference? What if their mining speed is so slow, it won't ever have an effect on the original discoverer?

-----

So, in the end, my concern is over the difference between:

1. being entitled to perform "fishing" on a river that isn't taken by somebody else

2. being entitled not to have anybody affect (reduce/increase) the amount of fish he can fish tomorrow

My view is that a fisherman is entitled to attempt to fish those fish that are in the area of this part of river that he is fishing at. I'm having problem seeing how this would extend his right to be entitled to future fish tomorrow.

(I'm assuming a case of a fisherman living far off, and just stopping by this river from time to time, but not actually right next to the river, so land rights from building a house don't play a role here.)

[TuringAI]

You might try instead using the search engine to find "IP", "copyright" and "patent". That's probably where most such discussions are filed.Are you proposing to derive IP rights from these two? (If so, I would argue against that).Unfortunately, the contract model fails because it can't be guaranteed that the rights-infringer is a party to a contract, which is a flaw that a statutory approach overcomes. Since you and I have no contractual arrangement, you can acquire a copy of my book and copy it ad infinitum and I have no legal recourse against you. Similarly, patents can easily be infringed by anyone who manages to acquire a widget and reverse-engineer it, or even acquire a copy of the contract that described what object may not be replicated.

That's why we get a right of privacy/secrecy/confidentiality to go along with the right to contract. This means any third party interference with a contract is violating the rights of those who agree to it. But, likewise, the right not to disclose naturally implies the right not to be one to whom the information is disclosed, so a person can't just come around the corner and force you to accept the tenets of IP and then say "well now that it's revealed to you, you can't make one of your own" and then laugh at you.

In my method of protecting IP, there is no action-at-a-distance, and information is treated as a particular unit that exists somewhere in space and time, and is also capable of having its properties replicated indefinately. Given the context, this also determines whether or not the information-similar is also the property of the originator, or wheter it is the property of the one to whom it was disclosed.

[DavidOdden]

That's why we get a right of privacy/secrecy/confidentiality to go along with the right to contract.

Can you expand on that (from the ground up)? It seems to me that this is contrary to privity of contract; and in the case of commercially-exploited IP such as a book, the material is not secret. How would I protect my book from unauthorized copying? What happened is, Jones bought a copy but then innocently lost it. Then Smith found it (I think it was somewhere out in the Scottish moors, millions of miles from civilization and clearly abandoned). Smith said "Aha! An unowned, unencumbered copy" and started to reproduce it for 20% less (no royalties or initial setup costs). And now I'm out a fabulous fortune because nobody is buying the legal copies. What can I do? (I'm looking for a more detailed analysis)

[TuringAI]

Can you expand on that (from the ground up)? It seems to me that this is contrary to privity of contract; and in the case of commercially-exploited IP such as a book, the material is not secret. How would I protect my book from unauthorized copying? What happened is, Jones bought a copy but then innocently lost it. Then Smith found it (I think it was somewhere out in the Scottish moors, millions of miles from civilization and clearly abandoned). Smith said "Aha! An unowned, unencumbered copy" and started to reproduce it for 20% less (no royalties or initial setup costs). And now I'm out a fabulous fortune because nobody is buying the legal copies. What can I do? (I'm looking for a more detailed analysis)

I really can't give a detailed analysis, but there are two arguments I could make. If the person who owns the IP made a contract with Jones, and Jones disobeys it, intentionally or not, by abandoning it, then depending on what's on the contract, the person who abandoned it will be held liable.

Furthermore, what about if someone stole a car and sold it to me? I would have no right to use it, and if I had a rational way of identifying the owner of the car it would not simply be a matter of choice whether or not I were to use it or find the owner and return it. The same thing goes for a stolen book. If there were a rational way of identifying that not only the physical book, but the intellectual contents of said book, were in fact owned by someone else, it would by my obligation NOT to copy it, or even to read it. I would have to hand it to a judge to determine to whom it really belonged.

Finally, to deal with the whole commercially exploited point you just made, I imagine that any business which wanted to do so could create a membership of sorts, whereby nonmembers were not allowed to have any form of access whatsoever, and members were obliged to be careful with any products sold to them so as not to let them fall in the wrong hands.

It may on the face of it seem impractical, but because the theory is sound, there must be at least SOME way to practice it. Given the proper first-conditions, anything which is theoretically possible in that context is definately do-able.

[DavidOdden]

If the person who owns the IP made a contract with Jones, and Jones disobeys it, intentionally or not, by abandoning it, then depending on what's on the contract, the person who abandoned it will be held liable.

The problem is, first, that that's an unreasonable requirement -- you're imposing a condition of infallibility -- and that is a serious problem. Second, it may easily be impossible to know which owner is in putative violation. All you could know is that there is some owner who has failed in their duty to never lose the book. And from a very practical POV, if you bought a book for $20 but knew that it could cost you $100,000 in damages if you lost it, would you actually buy the book? I can't think of any circumstance when I would.

Furthermore, what about if someone stole a car and sold it to me?

That's not relevant; we're not talking about the right to buy the same token. You shouldn't bring cars into it, because they are hardly analogous. First, cars have a permanent identifier (VIN) and a registration system, unlike books and screwdrivers. Second, the issue I raised regarded a lost and abandoned book, not a stolen book. Third, the copied books were not themseles stolen, they are replicas of an item neither created nor purchased by the person (and they are items created by the person, who would then ordinarily have the right to sell them as his property).

If there were a rational way of identifying that not only the physical book, but the intellectual contents of said book, were in fact owned by someone else, it would by my obligation NOT to copy it, or even to read it.

Well, to start, the owner of the IP and the owner of the physical book are rarely the same person. Thus the IP is owned by one person -- as recognised by IP law -- and the specific token is owned by another person. If the owner of the physical object has apparently abandoned the book, then I have no obligation to let this thing of value rot in the gutter. If you are saying that a moral man would recognise that despite having found the book, you can't claim the right to copy the contents of the book, then I would pretty much agree. However, there is an important difference between the moral judgment that you should not reproduce another man's work, and the legal judgment that you may be punished for doing so. In addition, there must be some systematic method of extinguishing these claims on the future, so that for example I'm not allowed to fashion a knife because someone else came up with the notion of the knife, millenia before me.

The most important point that I want to emphasize here is that it's not possible to substitute contractual concepts to get the legal effect of laws protecting IP. The essential flaw in the contractual approach is that privity of contract means that you can't tell me, a third party, what to do, when I'm not a party to the original contract.

[TuringAI]

The problem is, first, that that's an unreasonable requirement -- you're imposing a condition of infallibility -- and that is a serious problem.

I'm not suggesting that someone be infalliable. I'm suggesting that they be responsible in case they do something wrong.

Second, it may easily be impossible to know which owner is in putative violation. All you could know is that there is some owner who has failed in their duty to never lose the book. And from a very practical POV, if you bought a book for $20 but knew that it could cost you $100,000 in damages if you lost it, would you actually buy the book?

You wouldn't be responsible for just happening to lose it if you actually were taking the actions specified in the contract. IE, return it to a safe place, don't let people borrow it, and definately DON'T tell someone else that you have an unabridged right to the token AND the contents. That last one it would be reasonable to fine someone $100,000.00 in damages.

I can't think of any circumstance when I would.That's not relevant; we're not talking about the right to buy the same token. You shouldn't bring cars into it, because they are hardly analogous. First, cars have a permanent identifier (VIN) and a registration system, unlike books and screwdrivers.

Well why not books? If it were deemed necessary people would do it.

Second, the issue I raised regarded a lost and abandoned book, not a stolen book. Third, the copied books were not themseles stolen, they are replicas of an item neither created nor purchased by the person (and they are items created by the person, who would then ordinarily have the right to sell them as his property).

Well if it was obvious, by some indication on the book itself, IE that it was physically destroyed, or that it had a BIN code on it, that it was not yours, then even if it was abandoned (a concept which goes against the idea of personal responsibility for property, BTW) you wouldn't own it, in the same way that if a rental car is stolen and transferred, the recipitent does not actually own it.

Well, to start, the owner of the IP and the owner of the physical book are rarely the same person. Thus the IP is owned by one person -- as recognised by IP law -- and the specific token is owned by another person. If the owner of the physical object has apparently abandoned the book, then I have no obligation to let this thing of value rot in the gutter.

If someone has abandoned a piece of fine jewelry then wouldn't you assume that the owner would want it back? You wouldn't let it rot in the gutter. You'd return it. In a proper government, abandonment would not constitute a dismissal of freedoms and responsibilities of the original owner, otherwise one could, say, pollute someone else's land, and then claim that since the pollutionh was abandoned 'product' that they are not responsible.

If you are saying that a moral man would recognise that despite having found the book, you can't claim the right to copy the contents of the book, then I would pretty much agree. However, there is an important difference between the moral judgment that you should not reproduce another man's work, and the legal judgment that you may be punished for doing so.

Even if the idea of intellectual property were maintained as the right to put conditions on individuals reguarding disclosure of work, the way to allow that to extend as if if were just like the present system is to maintain an unabridged right to privacy as well as contract. Any breach of privacy then would be the responsibility of those who created the breach. As impractical as that sounds, we have many ways of actually accomplishing this.

In addition, there must be some systematic method of extinguishing these claims on the future, so that for example I'm not allowed to fashion a knife because someone else came up with the notion of the knife, millenia before me.

If there were commercial organizations for handling claims and dealing with claims, who still deferred to law on the issue, then it wouldn't matter that one person invented the notion of the knife. Someone else could re-invent it if it were unfairly monopolized and in perpetuity.

The most important point that I want to emphasize here is that it's not possible to substitute contractual concepts to get the legal effect of laws protecting IP. The essential flaw in the contractual approach is that privity of contract means that you can't tell me, a third party, what to do, when I'm not a party to the original contract.

And thus the crux of my argument: A third party has no inherent right to even know that two other parties have even made a deal, and if privacy was made an essential right alongside life, liberty, and property, the government would have the infrastructure of protecting IP rights reguardless of form. So basically, you can't tell a third party what to do if it DOESN'T infringe on their rights of privacy, but you can if it DOES.

I'd appreciate if most of the argument were made in reguards to the crux of the argument. It's the idea that needs to be understood, and applying it to the real world will come naturally if the idea itself is understood. That and I don't like having to go about worrying about details.

[mrocktor]

I have some disagreements with your view, but my own one isn't fully clear to me yet.

You raise good points Olex, I'll address the ones I consider essential:

This seems like a weird reason for me. It sounds like the cause if his need to continue to do what he did a day before with the river.

Need is not the basis of the argument. The fact that the material has been turned into a value by a person's actions is. An unclaimed, unused material is valueless - when someone starts using it productively, in some way, that person has created value. Destroying that value violates the creator's rights.

Furthermore, it also looks to depend on the degree that he used that river. So, if he used to a small degree yesterday, he isn't entitled to a larger use tomorrow?

Yes.

(...) it should be that a fisherman is entitled to not have anybody affect the amount of fish the fisherman can fish that he fished yesterday. However, couldn't this be easy to be affected by any other fishermen who arrive later upstream?

This is a dogmatic interpretation of the idea that quickly degenerates into something much akin to environmentalism in that obviously everything "affects" everything else in some way making the whole thing untennable.

In my view, however, a property right means no other individual can by his actions (and only his actions) damage your property. Therefore, if the initial fisherman can prove a causal connection between specific actions of an individual (or organization) and a reduction or the elimination of his fishing he has a case. On the other hand, if thousands of individual fishers move in upstream and the collective result of their individual actions is to reduce his fishing, he has no real claim against anyone (each of them is responsible for an irrelevant reduction of the total fish).

The big mistake, which is at the root of environmentalist policy, is to idea that you can be collectively guilty though your individual contribution to a given problem is negligible. This is not what I am proposing.

Now, you said wipe out (complete, I assume) would be breaking his rights. What about half of his usual return? A quarter, etc, etc. Where does the line begin if at all?

As I explained above, the amount is irrelevant. Causality is the line - if you can prove causally that specific actions caused specific damage, you have a claim.

Also, does this mean that morally each large fishermen company who stops by any river should first check entire river downstream to ensure that it hasn't been used by somebody else already before beginning fishing themselves? And also check that fishing amount wouldn't significantly affect those who fished before?

If they plan to deplete the river, certainly. Much like a company planning on dumping a toxic substance in a river should check if anyone downstream uses the water for drinking.

A gold vein has a specific shape and location underground. One can analyze and see if it has any disconnected parts. Let's assume he discovered several such disconnected parts, but built a mine that doesn't cover them all. Does somebody else have a right to mine others, since he isn't using those (yet?) ?

A principled argument ahs to be developed. I would say no. As the finder, having put the find to use and having the means to explore the whole vein (given time) he has a claim on the whole thing. The fact that it is a finite resource (compared to fish, water etc.) introduces some nuance.

Does the size of the gold vein make any difference? Does the amount of gold the discoverer can mine per day make any difference? What if his rate is slow to such a degree that he can't possible mine out all of it in his life time, can others start digging, too?

Good points, I'm not sure. In this case the resource is finite but for the practical purposes of the finder it is unlimited. More thought needed.

My view is that a fisherman is entitled to attempt to fish those fish that are in the area of this part of river that he is fishing at. I'm having problem seeing how this would extend his right to be entitled to future fish tomorrow.

Well, that is a right to nothing. If you had a right to your house now but no guarantees about tomorrow you could come home from work to find yourself locked out. A property right has to extend into the future. On the other hand, it is not an entitlement (as in "someone has to give me fish if this river runs out") nor can it be used against innocent individuals that collectively cause some effect on the property ("traffic on this road has my white house all sooty, you are driving by now so you owe me damages").

Edited February 13, 2008 by mrocktor

[progressiveman1]

The process needed to be able to rightfully claim ownership has been discussed here, but can someone explain why there isn't (or is) a process to maintain ownership of that property? Can a person lose ownership to his property other than by voluntarily trading it away or dying? Why is Locke's "spoilage" theory incorrect (or correct)?

I have some ideas on these issues but I can't quite put the pieces together.

Edited May 22, 2008 by progressiveman1