Pirate bay fruits get year in jail

[Pat]

It's an organization for "furthering the knowledge about intellectual property law and contributing to the development of this legal area". The organization is led by a certain Jan Rosén, who is well known as an intellectual property maximalist often seen in the media championing the cause of the IP rights and who advised the government in the creation of harsher laws on file sharing.

Civil rights are a relatively recent phenomenon as well - does that mean they aren't fundamental rights?

As you are a continential lawyer, I presume I don't need to explain the difference between natural and customary law - the fact that enforcement of a norm is recent in time doesn't indicate it isn't natural.

All legal norms can be characterized as social conventions that balance conflicting principles - private real property rights balance encouraging investment and validating investment backed expectations versus the appropriation of the commons.  IP rights involve the same considerations but because the titles tend to be of later vintage, the process of creations and the tradeoffs involved are more transparent.

What do we mean by a law being a natural law?

For example; the jews, upon Moses decline from Mt. Sinai, surely were not surprised on hearing that theft and murder and the like were all of a sudden not kosher. They could not have had the cohesion necessary to get that far had they not already known that. Some values men are born with and religion as well as the law have received them from man. And not the other way around.

From an evolutionary perspective it is easy to see why theft and murder within the group would be detrimental to human well-being. I think we can safely say that all men who are not psycopaths are born with a feeling of these things being wrong. Hence I would call laws against murder and theft natural laws.

Certainly we are not born with a feeling of respect for intellecutal property! How would that come about? In Sweden, at least, a vast majority of the population are polled as having no respect for intellectual property rights at all. Indeed, very few people consider it criminal in the least, and I think a carefully conducted cross-cultural study would show that there is nothing natural about respect for intellectual property.

[The Brain]

miglia, whoever the fuck you are, trying to make IP laws appear fundamentally different from other laws is fail. This obviously doesn't say anything about whether they should exist or not.

[The Minsky Moment]

What do we mean by a law being a natural law?

Don't look at me - Martinus is the one who relied on that particular distinction.

From an evolutionary perspective it is easy to see why theft and murder within the group would be detrimental to human well-being. I think we can safely say that all men who are not psycopaths are born with a feeling of these things being wrong. Hence I would call laws against murder and theft natural laws.

Certainly we are not born with a feeling of respect for intellecutal property! How would that come about? In Sweden, at least, a vast majority of the population are polled as having no respect for intellectual property rights at all. Indeed, very few people consider it criminal in the least, and I think a carefully conducted cross-cultural study would show that there is nothing natural about respect for intellectual property.

I don't think real property (property in land) satisfies that test.  Ownership in real property is not an evolutionary necessity, and there have been many societies in history that don't recognize it. 

For much of history, many societies have viewed institutions such as slavery or formal discrimination on the basis of race, gender, religious identification etc to be natural.  Most civilized modern socities reject this notion, and now the opposite concept -- equality of status -- is accepted as "natural".

My point is simply that "natural" law can only be one of two things:
1)  Those rules which are fundamental to the raison d'etre of a particular society. (subjective)
2)  Those rules which flow from "correct" normative principles of justice (objective).

Without getting into the debate about whether an objective natural law is truly possible, IMO IP law can fairly be argued to satisfy either definition. 

On 1) Modern capitalist societies are based on clear delineation and strict enforcement of complexes of rights (called "property rights") - both tangible and intangible.  In the 21st century world, approximately 75% of business assets consist of intangible property (and IP rights of various kind constitute the majority of that property).  Absent laws that establish and enforce IP rights, our present societies could not operate in their present form.

On 2) if one views creative acts as bringing broad value to society, then fairness demands that the creator be able to obtain some control over the dissemination of his or her creation and some compensation for the social benefit.

Of course - there are arguments to be made against, but that is so for any form of property right.

[ulmont]

miglia, whoever the fuck you are, trying to make IP laws appear fundamentally different from other laws is fail.

No, there is a fundamental difference between me being able to have a copy of your item only by taking your original away, and between me being able to have a copy of your item while leaving you with your original.

[The Brain]

miglia, whoever the fuck you are, trying to make IP laws appear fundamentally different from other laws is fail.

No, there is a fundamental difference between me being able to have a copy of your item only by taking your original away, and between me being able to have a copy of your item while leaving you with your original.

I don't follow. I am talking about laws.

[Admiral Yi]

No, there is a fundamental difference between me being able to have a copy of your item only by taking your original away, and between me being able to have a copy of your item while leaving you with your original.

It may be fundamental in that the author can still read his own manuscript for pleasure, but it's also trivial.

[Pat]

miglia, whoever the fuck you are, trying to make IP laws appear fundamentally different from other laws is fail. This obviously doesn't say anything about whether they should exist or not.

Are some laws not different from other laws? Is not a law against jaywalking different from a law against murder? To say that all laws are the same, on the other hand, that is a remarkable way to fail.



Keynes/Joan/Minsky:

It is certainly true that there is no objective natural law. With further advancements in evolutionary psychology, genetics and neuroscience, however, we may come close to a good definition within our lifetimes.

I think humans do have a sense of ownership of property of land. This is true for many animals. As for humans consider men in cars, who are well known to be much more forceful in their dealings with fellow travellers of the road than they would be if they were walking (for example) - because they are in their car, which they feel is their own territory.

However, had we only recently landed on this planet and we were to build our societies from scratch today, our concept of land ownership would certainly be a lot different than our current agrarian anachronism.

You are right, of course, to say that legal norms are built on balancing conflicting interests. In Sweden the interest of the land-owner is weighed against the interest of the multitude and it is decided on a right to roam freely on land belonging to others as long as you do no harm. We call this "Allemansrätten", or loosely translated "The right of all men".

I certainly do view creative acts as bringing broad value to society. It is in the interest of society that these things are created so that they may be consumed by society. If creative acts are created and then not shared within society, or only shared at a prohibitive cost, then that is by definition not in the interest of the society.

What is certainly in the interest of society is freedom of speech and freedom of information. Intellectual property laws are, by definition, an encroachment on these freedoms. They exist out of mere convenience, an artificial construction to stimulate the creative.

It used to be that this helped along the diffusion of the creative into society. It still does, to some extent. But of course legal interests must be balanced against each other.

[The Minsky Moment]

miglia, whoever the fuck you are, trying to make IP laws appear fundamentally different from other laws is fail.

No, there is a fundamental difference between me being able to have a copy of your item only by taking your original away, and between me being able to have a copy of your item while leaving you with your original.

So if I have multiple copies of an item (say a book or a baseball card) - is it more OK to steal one?

[ulmont]

So if I have multiple copies of an item (say a book or a baseball card) - is it more OK to steal one?

Progressive taxation supports a conclusion of yes.

And if you start with 10 copies, if it is possible for me to steal 1 copy and still leave you 10, then the yes answer is even stronger.

[grumbler]

No, there is a fundamental difference between me being able to have a copy of your item only by taking your original away, and between me being able to have a copy of your item while leaving you with your original.

I am gonna jump on the bandwagon and also call bullshit (at least as this is written).  There are differences (i.e. if you are zeroxing a copy of a book on which I lack a copyright, you are not stealing from me, but from the copyright holder) but they are not fundamental.

[The Minsky Moment]

Miglia - I think you are overestimating the "naturalness" of titles to real property.  It seems to me more natural to distinguish chattel or movable property (which is inherently personal in nature) from land and the bounty of nature which is common to all (though perhaps vested in the control of the ruler as steward).  Indeed, historically that is a common conception. Ownership of real property was historically a challenge to those philosophers attempting a natural right justification -- recall Locke's rather tortured explanation of right by virtue of "mixing" labor.  It isn't too difficult to adapt that notion to intellectual property as well, for whatever it is worth.

It's true that real property ownership (unlike IP ownership) involves possession of something tangible and physical.  But that doesn't seem to be a critical distinction.  Indeed, what is really at stake in real property is control of the usufruct right - which is intangible.  Imagine a piece of grassland that person A purports to own.  If person B grazes some cattle and then departs, then -- just as in the copyright case -- the "original" is not taken - the land remain, and assuming person B's herd is reasonably sized, there isn't any direct impact on Person's A ability to use his land for the same purpose.  But Person A's land has value precisely because notwithstanding the "renewable" quality of his land, he has the power to exclude Person B and all other persons - and that power to exclude gives him the ability to obtain compensation for access.  Thus the essence of the right to real property is a grant of monopoly as to use and access which can be exploited to generate revenue (rent).  The parallel to IP seems obvious.

[ulmont]

I am gonna jump on the bandwagon and also call bullshit (at least as this is written).  There are differences (i.e. if you are zeroxing a copy of a book on which I lack a copyright, you are not stealing from me, but from the copyright holder) but they are not fundamental.

I'm going to maintain my disagreement.  And really, grumbler, you're saying that you don't see any fundamental difference between rivalrous and non-rivalrous consumption?

[The Minsky Moment]

Progressive taxation supports a conclusion of yes.

Explain - I don't see the connection.

And if you start with 10 copies, if it is possible for me to steal 1 copy and still leave you 10, then the yes answer is even stronger.

So its Ok for me to steal your liver tissue, because you can regenerate it back? Can I steal crops as well because they will grow back again?

[ulmont]

So its Ok for me to steal your liver tissue, because you can regenerate it back? Can I steal crops as well because they will grow back again?

If you can take my liver tissue in a way that I never notice, feel free. 

As to crops, they generally don't grow back again these days but are replanted each year.  Harvesting (pecans, peaches, etc.) from trees might be a better analogy.  Even in that case, though, there is only X amount of product per year, and it cannot be consumed non-rivalrously, so no, you cannot steal crops.

I would like to point out at this juncture that the position I am supporting, as opposed to the straw man position you are attempting to push me toward, is that IP is fundamentally different from other property.  Not that laws protecting IP are not justifiable.

Another entertaining fundamental difference, in the US context, is that certain IP protections are only authorized "[t]o promote the progress of science and useful arts" and "for limited times."  The implied quid-pro-quo for societal benefit and the limited time is simply not found in the real or personal property scenario.

Progressive taxation supports a conclusion of yes.

Explain - I don't see the connection.

If it is fair to tax a higher percentage of the income of those making a higher income, it appears more justified (less unjustified?)  to steal from those who have more than to steal from those who have less.  See also Hood, Robin.

[Pat]

Miglia - I think you are overestimating the "naturalness" of titles to real property.  It seems to me more natural to distinguish chattel or movable property (which is inherently personal in nature) from land and the bounty of nature which is common to all (though perhaps vested in the control of the ruler as steward).  Indeed, historically that is a common conception. Ownership of real property was historically a challenge to those philosophers attempting a natural right justification -- recall Locke's rather tortured explanation of right by virtue of "mixing" labor.  It isn't too difficult to adapt that notion to intellectual property as well, for whatever it is worth.

It's true that real property ownership (unlike IP ownership) involves possession of something tangible and physical.  But that doesn't seem to be a critical distinction.  Indeed, what is really at stake in real property is control of the usufruct right - which is intangible.  Imagine a piece of grassland that person A purports to own.  If person B grazes some cattle and then departs, then -- just as in the copyright case -- the "original" is not taken - the land remain, and assuming person B's herd is reasonably sized, there isn't any direct impact on Person's A ability to use his land for the same purpose.  But Person A's land has value precisely because notwithstanding the "renewable" quality of his land, he has the power to exclude Person B and all other persons - and that power to exclude gives him the ability to obtain compensation for access.  Thus the essence of the right to real property is a grant of monopoly as to use and access which can be exploited to generate revenue (rent).  The parallel to IP seems obvious.

Locke proceeded from the false premise of the human mind at birth being an empty slate. I believe humans to be born with a sense of ownership of land (control of territory can be as important for mammals in the urban jungle as for mammals in the tropic jungle). That's simply an observation though - while some may be born with rapacious lust that doesn't legitimize rape. I personally don't feel strongly one way or another about the control of land.

I do see your analogy. I do not, however, quite see it's relevance.