Pirate bay fruits get year in jail

[The Minsky Moment]

I did not mention trademarks previously, as they are a distinctly different class of IP.  In fact, trademarks are more of a public benefit, offering the public the ability to recognize the producer of a good or service, than a real IP right vested in the owner (if not, there would not be the naked assignment and abandonment rules, to pick the most obvious).

Trademarks protect the public from source confusion, but they also protect the markholder from diversion - I would suggest you look at the doctrine of initial interest confusion (which provides for liability based on diversion even if the customer is aware the differences between the products at the point of sale), and the trademark dilution statute - which does not require a showing of confusion at all.  There is also the common law doctrine of misappropriation which explicitly protects producers, not consumers.

Trade secrets are rivalrous; once the second person knows the information, the benefit is lost or significantly diminished to the creator.   

Nonsense, a trade secret is an idea.  Under your definition of rivalrous, it is clearly non-rivalrous, because the appropriation by another does not diminish its content, quantity, or utility.  It only diminishes the ability of the holder to exploit it economically - and in that sense is identical to other forms of IP.  Under your new standard of a "benefit [being] significantly dimished" - the other forms of IP clearly qualify. 

Common law trademarks and trade secrets are discussed above.  17 USC 301 says you are wrong regarding common law copyright except as a matter of historical interest.

No it says nothing of the sort.  Read subsection (c) a little more carefully - this covers quite a lot of material.   Then read Capitol Records v. Naxos, 4 NY3d 540 (NY 2005).  In the area of sound recordings - which is the original subject of this thread - there is still quite a lot of material subject to common law copyright protection.

In any case, my point didn't turn on whether common law IP rights exist now, but whether they existed historically.

There is a qualitative difference in the quid pro quo made for a piece of personal property, a piece of real property, and a piece of intellectual property. 

If so, you have not made the case.  Rather, the only distinction you claim to be making is one of "rivalrousness" - which is distinct from the social quid quo pro.

As noted, the fundamental distinction is between rivalrous and non-rivalrous consumption.  Absent an external force imposing arbitrary monopolies, IP consumption is non-rivalrous in an age of digital distribution.

But you still haven't given a clear explanation of why the possibility "non-rivalrous consumption" does or should undermine the quality of something as a property right.

In order to try to get to the bottom of this let me advance some other hypothetical cases of non-rivalrous consumption and you can tell me whether there is something attenuated about the property rights at issue.

1)  Without payment or authorization, I surreptiously tap into a cable TV provider's box.  (ie I "steal" the cable).  OK?  Does the answer change if I turn around and resell cable services from other using the siphoned cable?

2)  (a) The power plant near where I live consistently generates more power than is needed even at peak levels of consumption.  Without payment or authorization, I tap into the power lines and siphon off power.  (b) Does the analysis change if I resell?

3) Every day, I get on a train without a ticket and successfully evade the conductor.  Variant hypo - I sneak into Disneyland/Yankee Stadium/etc.

4) I notice that the newspaper box near my office never sells out of papers.  Every day I wait for someone to pay for a paper and open the box.  Then I sneak in a grab a paper before the door shuts.

5) Joe owns a big piece of land near my house that has a nice view of the river.  He is paranoid though and doesn't allow anyone on his land and prominently posts no trespassing signs all over the place, even though he just stays in the basement of his house all day.   Every day, I walk right past the signs onto his land and have a nice picnic and enjoy the view.

[ulmont]

There is also the common law doctrine of misappropriation which explicitly protects producers, not consumers.

Misappropriation is generic unfair competition, not trademark.

Nonsense, a trade secret is an idea.  Under your definition of rivalrous, it is clearly non-rivalrous, because the appropriation by another does not diminish its content, quantity, or utility.  It only diminishes the ability of the holder to exploit it economically - and in that sense is identical to other forms of IP.  Under your new deinition of a "benefit [being] significantly dimished" - the other forms of IP clearly qualify. 

Another person having a copy of an artistic work or an embodiment of a patent idea does not diminish the value of the original creator or inventor.  For a trade secret, that value is lost, by definition.

No it says nothing of the sort.  Read subsection (c) a little more carefully - this covers quite a lot of material.   Then read Capitol Records v. Naxos, 4 NY3d 540 (NY 2005).

I've read them.  Pre-1972, to 2067, and then done, for sound recordings.  Everything else is federal.

There is a qualitative difference in the quid pro quo made for a piece of personal property, a piece of real property, and a piece of intellectual property. 

If so, you have not made the case.

Really?  You are claiming that the protections and obligations for you to protect your property rights in your TV, your house, and your copyrights are not qualitatively different?

But you still haven't given a clear explanation of why the possibility "non-rivalrous consumption" does or should undermine the quality of something as a property right.

In debating whether the state should protect property rights in personal property, such as a television, the potential harm of non-protection is obvious.  Less people would buy televisions if their neighbors could make off with them,

In debating whether the state should protect property rights in real property, the potential harm of non-protection is less obvious.  While beach access doctrines in particular show that exclusion is not always necessary for real property, there are certain uses for land, from individual dwellings to industry, that are harmed if there are no exclusion rights.

In debating whether the state should protect property rights in intellectual property, the potential harm of non-protection is still less obvious.  We know that artists and scientists will create and innovate for motives other than monopoly rights in their works.  I don't see that the case has been made that exclusionary rights are necessary in intellectual property.

In order to try to get to the bottom of this let me advance some other hypothetical cases of non-rivalrous consumption and you can tell me whether there is something attenutated about the property rights at issue.

1)  Without payment or authorization, I surreptiously tap into a cable TV provider's box.  (ie I "steal" the cable).  OK?  Does the answer change if I turn around and resell cable services from other using the siphoned cable?

In the first part, there is a potential but minor harm (wear and tear on cable boxes, etc.).  If you're surreptiously tapping into a cable TV provider's box and reselling cable services, the harm is greater (and it looks like an unfair competition harm, among other things).

2)  (a) The power plant near where I live consistently generates more power than is needed even at peak levels of consumption.  Without payment or authorization, I tap into the power lines and siphon off power.  (b) Does the analysis change if I resell?

Same analysis (distribution lines, blah blah; unfair competition, blah blah).

3) Every day, I get on a train without a ticket and successfully evade the conductor.  Variant hypo - I sneak into Disneyland/Yankee Stadium/etc.

Same analysis (wear and tear on trains, rides, bathrooms, water fountains, etc.).

4) I notice that the newspaper box near my office never sells out of papers.  Every day I wait for someone to pay for a paper and open the box.  Then I sneak in a grab a paper before the door shuts.

I don't see any harm here.  Even the potential harm possibilities appear sufficiently attenuated as to be de minimis, unless there is some big economic potential in recycled unused newspaper.

5) Joe owns a big piece of land near my house that has a nice view of the river.  He is paranoid though and doesn't allow anyone on his land and prominently posts no trespassing signs all over the place, even though he just stays in the basement of his house all day.   Every day, I walk right past the signs onto his land and have a nice picnic and enjoy the view.

I don't see any harm here.  The analysis changes if the number of visitors increases to the point of damaging the grass etc.

[The Minsky Moment]

Misappropriation is generic unfair competition, not trademark. 

TM is a branch of unfair competition.  The nature of the common law action of misappropriation is that it does not involve the taking of tangible property, but rather intangible goodwill or reputation.  In that sense it is akin to other actions protecting rights to intangible property.

Another person having a copy of an artistic work or an embodiment of a patent idea does not diminish the value of the original creator or inventor.  For a trade secret, that value is lost, by definition.

Plainly false.  The value to the creator of an artisitic work is not just the value of being to contemplate its aesthetic quality - its value consists of the ability to monetize it through sale ot others.  The ability of others to copy without compensation destroys that value.  OTOH, a trade secret arguably retains some value even if stolen, as long as it is not disseminated to every producer or potential entrant.

Really?  You are claiming that the protections and obligations for you to protect your property rights in your TV, your house, and your copyrights are not qualitatively different?

Not in the sense they all involve social quid pro quos.  Not in the way the existence of the rights are justified.

In debating whether the state should protect property rights in personal property, such as a television, the potential harm of non-protection is obvious.  Less people would buy televisions if their neighbors could make off with them,

In debating whether the state should protect property rights in real property, the potential harm of non-protection is less obvious.  While beach access doctrines in particular show that exclusion is not always necessary for real property, there are certain uses for land, from individual dwellings to industry, that are harmed if there are no exclusion rights.

In debating whether the state should protect property rights in intellectual property, the potential harm of non-protection is still less obvious.  We know that artists and scientists will create and innovate for motives other than monopoly rights in their works.  I don't see that the case has been made that exclusionary rights are necessary in intellectual property.

Obviousness is pretty subjective - in each case the harms and benefits are pretty obvious to me.  But I don't think the obviousness of the harms and benefits is what matters.  What matters is that the nature of those harms and benefits.  In each case, the nature is the same - establishing and enforcing the property right encourages and protects productive commercial activity and validates investment backed expectations.  In each case, there is the disadvantage of excluding others from enjoyment of usufruct rights - even where the outside could make a better or more compelling use or even where the use would not necessarily harm the owners ability to use (eg my neighbor could have the right to borrow my TV when I am out of the house or on vacation).  In each case, the absence of the right would seriously impact productive activity but not eliminate it (in a Hobbesian world, people would still engage in productive activity).

In the first part, there is a potential but minor harm (wear and tear on cable boxes, etc.).  If you're surreptiously tapping into a cable TV provider's box and reselling cable services, the harm is greater (and it looks like an unfair competition harm, among other things) . . .  Same analysis (wear and tear on trains, rides, bathrooms, water fountains, etc.).

Assume there is no wear an tear problem (any such problem would be de minimis under these hypotheticals).  On what basis is the harm greater given this is non-rivalrous?

I don't see any harm here.  Even the potential harm possibilities appear sufficiently attenuated as to be de minimis, unless there is some big economic potential in recycled unused newspaper.

So if there is no harm - does that mean the the newspaper companies property right in its papers is somehow attenuated the moment it puts the paper in the vending box?  If so - please explain how this happens?  If not - then there is no connection between the harm caused by rivalrous and non-rivalrous consumption and the quality of the property right.

I don't see any harm here.  The analysis changes if the number of visitors increases to the point of damaging the grass etc.

Same question as above, this time re the real property right.  Are you claiming rights to real property are not as strong as rights to personalty?  If not, how is your rivalrous analysis relevant?

[ulmont]

In each case, the nature is the same - establishing and enforcing the property right encourages and protects productive commercial activity and validates investment backed expectations.

This is not always the case.  Hell, look at  your Capitol v. Naxos example; enforcement there upset investment backed expectations and shredded productive commercial activity.

Assume there is no wear an tear problem (any such problem would be de minimis under these hypotheticals).  On what basis is the harm greater given this is non-rivalrous?

I'm not understanding your second sentence.  These examples are boiling down to a non-rivalrous consumption of a piece of personal or real property, though, so yes, in the hypothetical cases of non-rivalrous consumption of personal or real property, the potential harm from infringing on property rights appears less than in the vastly more common case of the rivalrous consumption of same.

Are you claiming rights to real property are not as strong as rights to personalty?

I make that claim, yes.  I support it by the higher frequency of taxation, the higher frequency of regulation, the higher frequency of condemnation, and the entire adverse possession doctrine.

[grumbler]

Main Entry: ri·val·rous 
Pronunciation: \ˈrī-vəl-rəs\
Function: adjective
Date: 1812
: given to rivalry : competitive

http://www.merriam-webster.com/dictionary/rivalrous

The word only dates back to 1812, so I can see how it might be a little new for you.

And here's an example of it being used in the economic context, in an Economics textbook by Richard Lipsey:
http://books.google.com/books?id=XzU1jwwwU80C&pg=PA278&lpg=PA278&dq=rivalrous+economics&source=bl&ots=-2m47Khr8i&sig=LBi5Pd6EB2_OtrlUSY2gAVqsN9o&hl=en&ei=UrTxSbzXEtyLtgeenJynDw&sa=X&oi=book_result&ct=result&resnum=4

man, we need that "whoosh!" smiley. 

You're begging the question there.  Absent the externally imposed right to copy structure, I can make a copy of your Mike and the Mechanics CD and enjoy it without taking yours away.  This cannot be done with your car.  The difference is fundamental.

You are ignoring the point here.  Intellectual property isn't about consumptions.  The difference between rival and nonrival consumption is utterly irrelevant to copyright.  You violate copyright by making a copy of my M&tM album even if you never listen to it.  The difference between production and consumption is fundamental.

[Pat]

No, not necessarily.  When the Dutch offered to buy New York for some beads the Indians figured they got the better end of the deal since no one can own land.

That people are born with the ability to feel ownership of land is not to determinstically say that all people must exercise this ability. Surely you will not dispute that all people are born with a sexual drive; yet, there are many examples of groups of people choosing celibacy.


Minsky:

I believe we reached common ground in that laws reflect competing interests balanced against each other.

In the case of file-sharing, specifically, those interests are (1) the interests of the copyright owner and (2) the freedom of information.

Consider now the power of the internet for near unlimited spread of information. There is no easy way for the state to stop the spread of copyrighted material over the internet. Either the enforcement of copyright is inefficient and sporadic, which would be a danger in itself, or the internet would have to be massively regulated and policed. That would be a great tragedy, and there is no way of knowing the damage that would cause.

[garbon]

That people are born with the ability to feel ownership of land is not to determinstically say that all people must exercise this ability. Surely you will not dispute that all people are born with a sexual drive; yet, there are many examples of groups of people choosing celibacy.

What now? Are you saying that the Native Americans were born feeling ownership of land but then decided that ownership wasn't something they valued?

[Pat]

No, I'm saying they were born with the ability to feel ownership of land.

[Barrister]

No, not necessarily.  When the Dutch offered to buy New York for some beads the Indians figured they got the better end of the deal since no one can own land.

That people are born with the ability to feel ownership of land is not to determinstically say that all people must exercise this ability. Surely you will not dispute that all people are born with a sexual drive; yet, there are many examples of groups of people choosing celibacy.

I think we both agree that the large majority of people are born with a sex drive and it is the small minority that lack such a drive.

You apparently assert (correct me if I'm wrong) that the large majority of people are born with a sense of ownership of land, and any counter-examples are just a small minority.  I very much disagree, and challenge you to prove that assertion.

If you want other examples, even in medeival europe there was no notion of fee simple title like we have now.  Serfs of course belonged to the land, not the other way around.  And while the noble had rights over the land it also had quite numerous obligations as well, and could not simply be dealt with in whatever manner the noble felt fit.

[ulmont]

If you want other examples, even in medeival europe there was no notion of fee simple title like we have now.  Serfs of course belonged to the land, not the other way around.  And while the noble had rights over the land it also had quite numerous obligations as well, and could not simply be dealt with in whatever manner the noble felt fit.

Well, even now, when you consider property taxes, zoning, blight ordinances and the like, ownership of land still comes with a fair number of obligations.

[The Minsky Moment]

Consider now the power of the internet for near unlimited spread of information. There is no easy way for the state to stop the spread of copyrighted material over the internet. Either the enforcement of copyright is inefficient and sporadic, which would be a danger in itself, or the internet would have to be massively regulated and policed. That would be a great tragedy, and there is no way of knowing the damage that would cause.

I agree that as a pratical matter, aggressive efforts to enforce these rights in that context are probably counterproductive.

[ulmont]

I agree that as a pratical matter, aggressive efforts to enforce these rights in that context are probably counterproductive.

Huh.  Almost a fundamental difference between the types of property.

[PDH]

That people are born with the ability to feel ownership of land is not to determinstically say that all people must exercise this ability. Surely you will not dispute that all people are born with a sexual drive; yet, there are many examples of groups of people choosing celibacy.

Wait, what in the fuck?  The ability to feel land ownership is genetic?

[Pat]

This is of course not something I can prove, as you no doubt must understand. The sciences of evolutionary psychology, genetics and neuroscience are yet in their infancy and while we wait for solid evidence we can do no more than speculate.

My argument is that there is something as human nature. The human mind at birth is not a blank slate, as Locke thought it was. Human nature, however, is something quite flexible and adaptible. In particular, we adapt to the culture forged by the experiences of those that came before us.

[The Minsky Moment]

This is not always the case.  Hell, look at  your Capitol v. Naxos example; enforcement there upset investment backed expectations and shredded productive commercial activity.

I know you understand the distinction between the underlying purposes of a rule of law, and the effect of an ajudication in a particular case.  Where the application of law is uncertain, there is always going to be an upset of at least one side's expecatations. 

I'm not understanding your second sentence.  These examples are boiling down to a non-rivalrous consumption of a piece of personal or real property, though, so yes, in the hypothetical cases of non-rivalrous consumption of personal or real property, the potential harm from infringing on property rights appears less than in the vastly more common case of the rivalrous consumption of same.

In that case, are you taking the position that the property rights in question are somehow diminished?

I support it by the higher frequency of taxation, the higher frequency of regulation, the higher frequency of condemnation, and the entire adverse possession doctrine.

Not sure that flies:
Personalty is very commonly taxed (income tax, sales tax, VAT, etc)
Personalty is also subject to heavy regulation (commerical regulation, substantive regulation of invididual categories like alchohol, tobacco, weapons, health products, etc)
Personalty is subject to forfeiture and confiscation under certain circumstances.

Given the reaction to Kelo, I also doubt that most people view real property rights as being a lesser form of property right (not that "common man" perception is a determinative factor - just an observation).