Intellectual Property (was: LISP and Free Software)

[Francois-Rene Rideau]

The following message is a courtesy copy of an article
that has been posted to comp.lang.lisp as well.

Followup-To: cybernethics@tunes.org

Once again, this is getting off-topic from comp.lang.lisp,
and I recommend moving the discussion to another forum, such as
        http://lists.tunes.org/mailman/listinfo/cybernethics

>>: Fare Rideau <fare+NOSPAM@tunes.org>
>: Eric Langjahr <langjahr@itsdata.com>


>> Sue your licensees if you dare; but don't you sue third parties.
> Would you suggest, that if I were to leave my car in your garage, and
> it was stolen, that I would have NO right to pursue the third party
> who stole it?  Only YOU for letting it be stolen?
Indeed, if I accept the responsibility for safely guarding
your car in my garage, then *I* am the one you should sue,
should the car be stolen. And should the thief be caught,
*I* am the one to sue the thief. And if either of us is insured
against such events, then the insurance in turn gets the right to sue,
and we can no more sue but for the part not covered by the insurance.

Again, in as much as IP is born in contracts,
you shouldn't be able to sue non-contractors.
In as much as it is a governmental privilege,
it should be abolished as the protectionism it is.
If it were a natural property, it would have to be protected
not just for 17 or 90 years, but forever.

> If I leave numerous valuable items on the street, in an unprotected
> state, your taking them is still THEFT.
Taking them sure is theft, but copying them is not.
And you sure don't get the right to search and seize anyone's property
because you were stolen while negligent, nor to seize anyone else's property
(through taxes) to have police protect you.

> If you steal from me, I am quite prepared in the absence of other
> recourse (civil or criminal charges utilizing government being one but
> not the only possibility), to hold a gun to your head and take that
> which is mine back.
And rightly so. Now, mind the "IF":
There remains to establish whether copying is theft.

>> That's the basic fallacy of intellectual property.
>> Intellectual property is a government-granted monopoly
>> that binds even non-contracting parties.
>
> I don't view the software I create as 'intellectual property',
> whatever that is.  Software is a tool which I have created.  It is MY
> tool.  It is MY property.

Yes, and MY copy is MY tool and MY property, too;
you shouldn't deprive me from MY right to use it.

> If you want to use it, than it must be
> because it provides some value to you.
Don't confuse VALUE and UTILITY.
UTILITY is about ordering states of the world according to preferences;
VALUE is about exchanging services to provide each one with utility,
at a rate established by the balance of market.
See around paragraph 15 of the following chapter of "Economic Harmonies":
        http://www.econlib.org/library/Bastiat/basHar11.html

> You don't have the right to steal my tools.
How am I stealing them?

        Property in ideas is an insoluble contradiction.  [He who complains of
        "theft" of his idea] complains that something has been stolen which he
        still possesses, and he wants back something which, if given to him a
        thousand times, would add nothing to his possession.
            -- H. Rentzsch, Geistiges Eigenthum, 1866.

> Just because software is easily copied, does not make it any less tangible.
Either your sentence is a self contradiction, or it is begging the question.
What is tangibility, and how is software tangible, to begin with?

> Don't claim that any third party has the
> right to make a binary copy of my work and utilize or sell it without
> my permission.
Of course they can. They can also sing, speak english, grow crops,
and do everything they want without your permission. As long as they
do it using stuff they own, like for example, a nth-generation copy
of your original software. Once you sold a copy, it's not yours anymore.
Just like your selling farming tools doesn't earn you a perpetual right
on the way the farmer uses them, your selling software doesn't earn you
zilch on the way people use the copy you hand them.

Oh, you may negociate a contract with them, but in absence of contract,
they shouldn't be bound, just like their shouldn't be a law protecting
tool-makers from non-permitted use of their tools by farmers lest
they condescend to grant the farmers a license.
Of course, in presence of tool-protectionism, after a few generations
of indentured farmers, the new ones will know better and only buy
from tool-makers who grant Free Tool licenses, so the society will
outgrow the iniquitous law. Yet the law will have made victims,
grown monopolies, encouraged people to lobby for more protection, etc.

>> But if you publish it, I deny you the right to sue people
>> who use, copy, modify, and redistribute it.
>
> Before you can deny me a right, you would need to tell me who would
> enforce YOUR denial.  Government?
>
Self-defence. If you try to enter MY home, seize MY computer,
and MY copy of some software whatsoever, etc.,
I'll greet you with bits of high-speed metal.
Government is but a way for people to associate in self-defence.

I'm as much of a property-respectful libertarian as you can ever be,
so please no straw man argument here.

So it all comes down to: what is property, and what is theft?
And please, just because a piece of paper makes it "legal"
doesn't make it any righter or wronger. 
What is property, out of natural right?
And what is but government protectionism,
stolen from the public at large to be granted to a privileged few?

You're begging the question.
You say intellectual property is natural property, I argue it isn't.
No need to make a straw man argument about independent premises
like my respect of property in general.


> I have not entered into a contract with you giving you permission to
> deny me anything.
The right for me to copy your work is no natural property of yours
to give away to me by contract, to begin with.

> Denying me a right, is asserting a right for
> yourself that would need to be enforced.
I can use the very same argument, with as much strenght or maybe more so,
to defend my right to use, copy and redistribute software:
are you claiming the right to seize anyone's computer
and digital media so as to enforce your alleged right to prevent copy?
Whence does any police get the right to enter my property
for search and seizure?

> Obviously to deny me that right,
> even you need some rights enforcing mechanism<g>!
> Do you have some 'third party' rights enforcing mechanism which I lack?
Self-defence, organized as "government" or not, is the only mechanism needed.
Just you come claim your "right" to control my use of my computer.

The question is not whether there is an enforcement mechanism. The question
is what are the rights to enforce, and whence these rights stem from.
Can government originate new rights, like "intellectual property rights"?
I contend that it cannot, and than when it does, it is detrimental to
everyone in the long run, and that society will find ways around it,
like mutual agreements not to use these rights (e.g. free software licenses).

> The fact is that without property rights you and I have nothing.
> Your life is probably your most valuble property.  If you have no property
> rights, than ultimately you don't even have the right to your life.
> Any third party would have the right to impress you into slavery and
> force you to labor for them.
I fully agree with this stance. This is not the premise I question.

> In my world, no third party has rights to my productive efforts
> without mutual agreement.
Copying your software, modifying it, and redistributing it was MY effort,
done on MY computer, with MY digital media, MY electricity, MY time,
MY creative thinking, without any additional effort required on your part.
You're denying me the right to my own productive efforts,
without mutual agreement.

> It is MY choice to decide who can utilize the fruits of my productive
> efforts and I can set the value for which I am willing to exchange
> them.
No it isn't. It is your choice to decide whether you are to make
productive efforts or not, but once you agreed to do these efforts,
you have no right to decide how other people will take advantage
of their result (least of course they agreed to it in advance).
Similarly, you may keep your recipees secret,
but if someone manages to bluntly copy them or to reverse engineer them,
or to enhance them, you have no right to prevent him from using them,
unless he specifically yielded his rights to you as part of a contract.

> If in your universe, you refuse to recognize my right to my life and
> my property than I, as well as many other like minded citizens, would
> be forced to take matters into our own hands.  Even in an anarchistic
> society, there can be respect for property rights, and enforcement of
> simple morality, whether you call that government or not.  In the
> 'wild west' they may not have had much government, or even a sheriff,
> but they still knew what to do with a horse thief.
Again, I fully agree with this stance.
My computer, my mind, etc, are my property.
If you're trying to rob me from the right to use them as I see fit,
I'll have to fight you back.

So, can you have a serious discussion on the heart of the problem,
instead of raising straw man arguments about a side question?

It all boils down to: is intellectual property natural property,
or is it a government-granted monopoly? How do you identify property? etc.
Among the many pointers in
	http://fare.tunes.org/articles/patents.html#pointers
I particularly recommend you Roderick T. Long's
"The Libertarian Case against Intellectual Property".

Yours freely,

[ François-René ÐVB Rideau | Reflection&Cybernethics | http://fare.tunes.org ]
[  TUNES project for a Free Reflective Computing System  | http://tunes.org  ]
I do agree that I have to pay for the *opportunity* to read a book or to use
a program; I do not agree that I have to pay for the *right* to do so.