Topic: Hardcore libertarians: explain your anti-IP-rights position to me. - page 4. (Read 6806 times)

The 'blue' crack was hyperbole. But, all too often, an accurate one. The defining characteristic of a Libertarian is our love for debate (as evinced by the length of this thread)

EULAs are not contracts, and they're not enforceable.

I don't think that's fair. While you can probably find a self-described Libertarian or two who holds any imaginable view, there are a large number of positions that the vast majority of Libertarians hold consistently and are consequences of Libertarianism's principles.

But if you take the position that no two Libertarians agree on anything, then there's really no answer to the OP's question.

I agree, most Libertarians would believe that the market would sort it out. However, their position on what role the legal system would play in that sorting will vary. But it's true, many 'defects' in the legal system can be worked around by contract. (For example, EULAs are one way Microsoft 'works around' perceived weaknesses in the law of copyright.)

Oh please, there's hardly a "libertarian view" on the definition of the color blue. I wouldn't be surprised to hear one of us say 'The market will sort it out'. And you know what? That's the answer to your little Hypothetical. The Market will sort it out.

Okay, fair enough. But whatever that other mechanism is that permits transferrable property rights, unless it's carefully rigged not to, it will apply to other types of rights as well. In any event, Libertarians really are split on this issue. There is no one "Libertarian view" on this.

I think you're begging the question. Maybe you can't have transferable property rights without enforcing contracts against third parties, because you have a particular belief about the nature of ownership (i.e. that it only exists to the extent that observers are contractually forced to acknowledge it), but that doesn't restrict the rest of us who aren't burdened with that belief.

Which word didn't you understand?

I understand that's your position, but Libertarians are in fact split on the issue of whether Jeff broke a contract or was merely being a dick. I just asked a bona fide Libertarian, and his position was that Fred has a suit against Jeff because his implied contract with his employees (that he would pay them money for breaking their contract with Fred) makes him an indirect party to the contract he asked them to violate. In a sense, they are acting as Fred's agent when they violate their contract with me. This makes Fred liable.

I don't know what my own position is. I find these kinds of situations to be very difficult.

[1]LOLWUT?

[2]As I said before, being a dick isn't actionable. Breaking a contract is.

You cannot have transferrable property rights if contracts aren't enforceable against third parties. Libertarians are split about more complex cases. Ask this hypothetical to a dozen Libertarians, you will get a wide spectrum of answers:

"Fred and Jeff own competing sales businesses. Fred has a contract with all of his employees that if they leave him to work for a competitor, they may not contact existing customers for 180 days. This contract is valid and enforceable against those employees. Fully aware of this, Jeff hires away Fred's employees and directs them to contact their existing customers and try to get them to switch to his company. When the employees express fear that they might be sued or that they shouldn't break their word, he tells them not to worry about it. Fred hears about this from his customers. Does he have a suit against Jeff?"

I don't see how that's relevant. The question of what damages I suffer when you destroy my TV is separate from the question of whether or not I own it; the fair value of the property you destroyed depends on many other things besides the terms under which I bought it.

And in practice, I suspect a court would find that my contract with the person who sold it to me has no bearing on the amount you owe: my inability to fully enjoy the use of that property doesn't let you off the hook. For instance, if I'm blind and unable to see the screen, that doesn't mean you can pay me just enough to buy a damaged TV with a broken screen. The screen still has a value (I can resell a functional TV for more than a damaged one), just as the ability of the TV to operate on Wednesdays still has a value (I can negotiate with the seller for permission without buying a whole new TV, or I can just break my contract and watch it anyway).

The idea that you only own something if every third party agrees to abide by the contract under which you bought it is appropriate enough for a bitcoin forum, I guess, but I have to say this is the first I've ever heard of someone trying to apply it in the real world. Did you come up with it yourself, or is there a school of thought out there that believes libertarianism actually does require enforcing contracts on people who weren't parties to them?

I refuse to separate them because you can't separate them. It seems like you can when you look only at simple sale contracts. If I sell you the TV, you now own the TV. It doesn't matter what the contract says. But we're not talking about simple sale contracts, we're talking about more complex cases. Say you buy a TV, but in the sale contract you agreed not to watch the TV on Wednesdays. Now suppose I accidentally destroy that TV. Are you entitled to the fair market value of the TV? No, because the fair market value includes the value of the right to watch the TV on Wednesdays, a right you didn't have.

I shudder to think.

And yes, the knockoff cycle, as I think I will start calling it now, is a vital component of a healthy economy. It encourages innovation.

I like to look at the intellectual property argument from something of a utilitarian standpoint.  Imagine there is a machine I build and it does a wonderful thing, say it cures cancer, or makes cake.  If my machine is truly an improvement over other options on the market I will be able to charge a large profit for it, and eventually copycats will come out and the price will be forced down.  if we are at a point where everyone can rip off everyone else for these sorts of machines if they weren't patented then I would argue the envelope is not being pushed hard enough.  I can't patent making ice or yarn or beer now because everyone can do it.  If your cooking methods are really that revolutionary, then no you have no reason to publish them but you would be foolish in thinking that they would never be reproduced in any real society.  The innovation-knockoff cycle continues in a given industry until human intellect is strained.  "Let's see them try to make THIS!" would be the shouts from remarkably high-paid engineers and scientists as they compete for capital.

Think about it.  What would happen if Lycos had somehow claimed intellectual property on all search engines?

The unconscionable nature of Intellectual Property is the basis of my argument against it. I also despise abortion, but I support a woman's right to have one.

The unenforceability of a contract upon a third person is the basis of my argument against IP law. (well, that and my problem with laws in general)

That's only true if you refuse to separate the concept of ownership from the contract that assigns it. As I see it, it's none of my concern how you came to own that TV -- what matters is that you own it now. The TV is not a bitcoin that needs to prove its lineage to everyone who comes across it, and the sales contract is not a passport that you need to carry around to prove you own the TV. A third party can't ignore the contract and pretend you don't own the TV any more than he can ignore a contract with your barber and pretend your hair hasn't been cut.

I agree that it's hard to justify that prohibition from a libertarian standpoint, but as a non-hardcore-libertarian I see no problem doing so. I don't mind saying that you can't sell yourself into slavery, for example. And although I've got no beef with NDAs that protect actual secrets, I wouldn't mind banning contracts that require one party to avoid sharing information that's already been made available to the public, which is what a contract that implemented copyright would be doing. To sign away the right to discuss your own culture is to give up your own humanity, and I'd be delighted to see my tax dollars going to fight those who would pressure their customers into doing such a thing.

It depends how different you imagine society being. If all we did was get rid of the IP laws but otherwise left things the same, people would agree to them without even reading them much like they do today with click-through EULAs.

It's only such a hassle because the government requires it to be a hassle. If there were huge commercial incentives to make it as easy as possible and no laws requiring it to be difficult, it could be made trivially easy to do. (Like having a library card. If you had to do it to go to a movie, you would.)

I largely agree with everything you say about how IP laws actually operate. Libertarians should be reasonably convinced that market-based IP agreements arranged by contracts will work out better.

Really the only live issue, other than Libertarians who don't understand the consequences of their own positions, is enforceability against third parties. As I've argued, Libertarianism doesn't work if third parties are free to ignore the consequences of other people's contracts. (The only reason I can't steal your TV from you is because I am not free to ignore the right to that TV that you acquired from that contract. If I was free to ignore that contract on the grounds that I wasn't a party to it, you would have no recourse against me when I stole your TV. I would not be required to accept that it was yours.)

Are you arguing that copyright and patent terms are not just unfair or unreasonable but *unconscionable*? Are you saying I should not be permitted to sell you a CD on the condition that you do not copy it?

It is a fundamental Libertarian notion that the government should never prevent two consenting people from making a mutually-beneficial agreement without an extremely powerful justification for doing so. I don't see an extremely powerful justification for prohibiting agreements of this kind.

That would be fantastic. I don't think people in general would stand for all these restrictions on their speech and property rights if they had to explicitly agree to them each time they bought something.

For instance, buying decongestants at the drug store is such a hassle (thanks to anti-meth laws) that I find myself discouraged from doing it, even though all I have to do is go to the counter, sign a form, and show my ID. I could foresee a lot of customers choosing not to buy CDs and movie tickets if buying them meant voluntarily agreeing to pay thousands of dollars in fines and/or serve jail time if they used their knowledge of that music/film in the wrong way thereafter.

Considering the difference in political clout between creators and consumers, I don't think there'd be much difference. There's basically no one looking out for the interests of consumers or defending fair use anymore. The "limited time" of a copyright term has gotten longer and longer, and been extended retroactively with no reason not to expect future extensions, such that it may as well be unlimited. The perceived purpose of copyright has shifted in many eyes, from giving authors an economic incentive for future work, to instead giving them their morally deserved rewards for past work. Fair use as we know it today is good for critics and parodists but has almost no value to consumers.

...and we're back to 'you don't own what's in my brain'

There is one and only one difference between an implied contract and an explicit contract. With an explicit contract, the terms are explicitly agreed to. With an implicit contract, the contract is offered by one side and the agreement is implied from the other side's performance of what the implicit contract requires.

For example: "How much is a candy bar?" "$1" "Okay" - explicit
"How much is a candy bar?" "$1" [hands $1 across the counter] - implicit

That really is the only difference. In both cases, some of the terms of the contract are implied by law and understood by both sides. (For example, what happens if my dollar is counterfeit? What happens if the candy bar is defective in some way? All of these terms are implicitly part of even an explicit contract.)

There really is almost no difference. Most real-world agreements have both explicit and implicit terms. The only real difference is that it's sometimes harder to prove that an implicit contract exists or to establish that it had particular terms. But so long as there was a mutual understanding, whether explicit or implicit, the terms should be enforceable. (With the obvious exceptions for things like verbal agreements to transfer ownership in land, unconscionable terms, agreements obtained by coercion, and so on.)