IP Without Monopoly · Wednesday April 08, 2009 by Crosbie Fitch
Jim Bursch said 5496 days ago :
Can Fred Smith give his pink sox to his girlfriend Sally Jones on the condition that she can never give the sox to Fred’s rival, Joe Anderson?
Jim Bursch said 5496 days ago :
Perhaps a better way to frame the question is, Can Fred Smith write a love poem to Sally Jones and give it to her under the condition that she never share it with Joe Anderson?
drew Roberts said 5494 days ago :
Jim, I think the question is still incomplete.
Do you mean Fred gives it wrapped as a present and inside of the present he has a letter stating his conditions?
Or does he tell her that he has written a love poem for her but that if she wants it, she must sign a contract with him with certain conditions before he will let her see it?
Or something else?
all the best,
drew
Crosbie Fitch said 5493 days ago :
Jim, natural rights are inalienable, whereas property (private objects obtained through gathering, creation, or exchange) is alienable. That means you can’t contract away your liberty, but you can contract away your property. However, you can make any conditions you like in a contract. Even so, much as many people mistake them as such, these conditions are not obligations.
You could say in a contract “If you work for me for 30 years, I’ll give you a gold watch”, however, that ’30 years’ is a condition, not an obligation to work (slavery), it’s also unlikely to be regarded as an equitable exchange (probably being a bonus, additional compensation).
So, in answer to your first question, Fred cannot give his socks to someone in exchange for them surrendering their liberty to give them to someone else. However, he could say, “Here’s some socks, and if after twenty years I never obtain evidence that you’ve given them to Joe, then I will give you a bottle of pink champagne”. Alternatively, Fred could say “I’ll lend you my socks on condition you lend them to no-one else, so if I find out you’ve lent them to Joe I’ll require their immediate return”.
The same applies to the second question. Sally cannot ethically surrender her liberty, or freedom of speech, to share her property. So, Fred can’t place obligations on the use of the gift. Fred can lend her the poem and require its immediate return if he finds out she’s lent it or copied it, but he can’t require the return of the copies she’s made (because naturally they’re her property).
However, because copyright has already suspended the public’s liberty to share (to make copies), Fred can effectively permit Sally every liberty suspended by copyright save that of distributing copies to Joe, which effectively obliges Sally to sublicense her copies similarly. Inevitably Joe will end up with copies from someone, but Fred is likely to have a very tricky time finding out who distributed a copy to Joe and prosecuting them for copyright infringement.
Moreover, because copyright has already alienated the liberty to copy, this liberty can now be the subject of contracts, e.g. “If you give me the exclusive liberty to copy your book, I’ll give you $1 for each copy I make.”
It is precisely because copyright appears to enable people to suspend each other’s liberty (or persuade them to alienate themselves from it), that we then get other contracts such as NDAs that attempt something similar, i.e. persuade people that they can and must alienate their liberty to disclose information. Where they go wrong is in presuming that if copyright effectively alienates people from their freedom to copy or publicly perform original works, then this NDA can alienate people from their freedom to publish any information obtained as a result of their employment. They can’t, or at least they can’t do so ethically. In practice employers and employees (and corrupt/incompetent judges) are easily convinced that subject persons break the law should they break the NDA. NDA’s can of course make unauthorised disclosure grounds for dismissal (since continued employment isn’t a right, and can be conditioned on maintaining confidentiality), but they can’t actually make it grounds for prosecution. Contracts cannot create their own legislation.
Crosbie Fitch said 5493 days ago :
Drew, shrink wrap documents aren’t agreements if the property has already been exchanged without them. They may well be licenses, i.e. provide restoration of liberties (suspended by copyright) not specified in the original exchange (and may be conditional). A license is not a contract. However, a license may be available subject to a further optional agreement that may be contained within. And agreement must be voluntary and explicit. It cannot be inferred by any action, even if that action is only permitted by the license. Even an action specified to constitute agreement can’t be taken as agreement if the person would be inclined to do it anyway, e.g. “By installing or operating this product you have purchased you signify your agreement to pay us $10 per annum”.
One can certainly exchange intellectual property through contract, but (aside from copyright and patent), one cannot exchange someone’s liberty to do with it as they please, after all, if you sell your property to someone it becomes their property.
Freedom of speech means you should be able to say or publish anything at any time – without physical restraint or interference, e.g. censorship.
Liberty means there are repercussions for certain speech, especially authoritative publication, e.g. malicious falsehood, violations of privacy, threats to life.
Thus if you publish the knowledge (obtained by a tip-off from a burglar who snuck into Fred Smith’s bedroom via a poorly secured window and peeked into their sock drawer) that Fred Smith has pink socks, then this is to compound the burglar’s privacy violation.
Fred Smith own’s the colour of his socks, but the colour of his socks is not intellectual property, i.e. it can’t be transferred because it is not identifiable as a distinct/independent work and thus can’t comprise property. However, his socks can be transferred of course, as material and intellectual property, given the sock represents both a material as well as an intellectual work. The colour of the socks comprises part of the intellectual work that the socks represent (their shape, design, weave, fibre, pattern, colour, etc.).
If the burglar had taken a photo of the socks then this would constitute IP theft, since the image of the sock captures a large part of the intellectual work the sock comprises, and is also able to identify the intellectual work.
However, no-one has a natural right to a monopoly, whether in the material design of the sock or its visual appearance. Once you’ve bought Fred Smith’s socks (if he wanted to sell them) you can naturally copy them to your heart’s content – and are also as a consequence able to publicise the fact that Fred sold you some pink socks (if you don’t think your reputation will suffer for such an indiscretion). Then again, if by some coincidence you unwittingly produced a pair of socks that were indistinguishable from Fred’s, well, that’s fine too (however you won’t necessarily know that Fred has a pair just like them).
This is how intellectual property works without monopoly. There are still laws against copying intellectual work, it’s just that they’re restored in alignment with natural law, i.e. you can copy what you privately possess, but not that which someone else privately possesses. Your freedom is not unethically constrained by being prohibited from invading or violating another’s privacy.
But most importantly, your freedom is not constrained due to the granting of unnatural monopolies of copyright and patent to mass producers of copies and devices. Such monopolies are unethical and should be abolished.
Without monopoly, intellectual property is natural, along with natural intellectual property rights.