eSignature Legitimacy for Assignment of Intellectual Property in Australia

How to eSign a document: e-signature legitimacy for Assignment of intellectual property in Australia

by foundations of writing on the academic agency to write clearly will help you to think clearly the ability to communicate ideas in lucid prose is foundational to success in many areas and it is a basic requirement in every walk of life you will learn the parts of speech and come to understand the core functions of the english language sentence construction and syntax punctuation style and common mistakes once you see how mistakes are made you will not unsee them you will know for the rest of your life foundations of writing buy it now recently i had a bit of a debate about intellectual property rights specifically copyright and trademarks with several libertarian friends of mine on econ chat i've linked it in the show notes i was on the side of ip radlib lambda and mad merc were on the anti-ip side i consider their position to be nonsensical and vice versa they were drawing on the libertarian legal theorists stephen kinsella who is a member of the mises institute and who wrote what is considered the definitive argument on this topic it is called against intellectual property in this video i want to do two things first i want to lay out my own positive vision of intellectual property that is i want to explain why i support ip on both moral and utilitarian grounds second i want to pinpoint where i think kinsella goes wrong so let me begin we are the music makers and we are the dreamers of dreams these lines begin the poem owed by arthur o'shaughnessy they are repeated by willy wonka as played by gene wilder in the 1971 film and it is in fact with wonka that i'd like to start my defense of ip in that same film wonka sings come with me and you'll be in a world of pure imagination take a look and you'll see into your imagination but access to this world is closed off of course famously wonka issues five golden tickets and the lucky winners gain access to his dream world a dream world which has been made manifest in a physical factory but which originated in the head of mr willy wonka in the film these tickets are so scarce and so highly prized that everybody from the queen of england to south american dictators do whatever they can to get some wonka bars in order to try to win a golden ticket why do i mention this i mention it because intellectual property is much like gaining access to wonka's factory when you buy a book for example you are not buying paper and ink you are buying in effect a dream ticket you are buying access to the world of pure imagination dreamed up by the author and just as the kids in wonka you get to play there for a while the book is a physical portal into the dream world it is obvious that when people buy for example a copy of george r r martin's song of ice and fire they are buying this experience access to the fantasy world rather than mere paper and ink this is why people will also buy it in audio form or in digital form the material form of the text is less important than the ideas that the text conveys the text is just a portal so intellectual property is justified on these grounds you are buying access as manifest in a physical object to ideas and experiences much like a ticket to a theme park i suppose it's no coincidence that walt disney invented disneyland his business was selling dreams and mickey mouse one of the most famous ip properties in the world is estimated to generate about 5 billion dollars a year what is the moral basis for an author laying claim to owning their ideas we can justify it in the same way that land ownership rights are justified through the lockheed homesteading principle if you consider that in the landscape of ideas or if you prefer the world of pure imagination or if you prefer plato's world of forms ideas are nearly infinite in their potential and variety then it only seems fair that the person who gets to a specific configuration of said ideas to have homesteaded that configuration on the finders keepers principle walt disney was the only person to invent mickey mouse a character with unique and distinctive features let us not pretend that he is not unique and distinctive we know he has the big ears the white gloves the red shorts the yellow shoes his very specific face and so on and so forth disney was the only person in the world to put together these specific elements in this specific form and therefore it is correct that he owns the rights to this character and subsequently that he is able to transfer or sell those rights to third parties much as the original owner of some land may sell the deeds to a third party that is how property rights work those who argue against ip claim that copying an idea is not the same as stealing it because if someone uses their own printing press to copy say a print of mickey mouse or a copy of martin's song of ice and fire then the claim to ip is violating the owner of that printing press's property rights because it is dictating what they can do with it in this case the anti-ip advocates claim that the owner of the printing press should be allowed to do with their press as they please and indeed to sell the products of that press even if those products are not ones they came up with themselves but this is willfully to misunderstand what is being sold as i said it's not paper and ink that is being sold but tickets to a dream world what right does some third party have to sell such tickets to dream worlds that they did not create none at all and this is readily understood by all right thinking people in the absence of a state the original creator would have to take up arms or to employ security firms to enforce their ip claim but this again is no different to a property claim on land which is enforced on pain or violence again in the free market uh in the absence of a state walt disney would have to employ security firms to defend his land and in the same way he would employ a security firm to defend his ip claim on mickey mouse in our society property rights are upheld by the state and so ip rights are upheld by the state but the principle is identical to try to distinguish between land and ip on the basis that one is physical and the other is only in the realm of ideas seems to me to be literalist in the most underheaded sense in fact that it is chiefly an idea which is to say a non-material thing that is at stake in questions of subjective value is intrinsic to economic theory going right back to carl menger recall menger said no one values wheat as wheat per se but for the individual functions that wheat satisfies so really the person doesn't want the wheat but the idea of something to satisfy his food need something to satisfy his hygiene need something to satisfy his need to feed his cows something to satisfy his need to make alcoholic drinks and so on and so forth thus wheat can be substituted with any number of other goods that fulfill the same function for a minimal trade-off of want satisfaction the actual physical good is subordinate in each case to the psychic need being addressed the satisfaction that is satisfied this is the thing that is valued not the object itself the actual physical good is subordinate in each case to the psychic need in a sense then all good satisfy wants that cannot be seen or easily measured yet we take it for granted that there exists a market for wheat and that a man can own wheat as property what difference then between wheat and the virtual good which in our case are the tickets to a dream world created by some author just as the physical wheat is only a physical of that mental need that the consumer wishes to satisfy so too is the book only a physical representing that mental need of accessing the dream world through which the words might transport you this is to say nothing of other intangible goods on the market like swaps futures you know complex financial goods all of these are accepted by libertarians even though they don't really have anything kind of physical or tangible attached to them but yet we we recognize that they exist as assets so i don't see this hang up on the word physical being valid at all really and this brings me finally to the utilitarian grounds for supporting intellectual property why are property rights good at all aside from the moral question of lockheed homesteading they are good because they ensure that land is subjected to a self-interested monitor someone who owns their own home is more likely to look after it than somebody who only rents and even more so than somebody who is simply given that home by the government when land is held in common it is said to lead to the tragedy of the commons the monopoly ownership of intellectual property by the original author or whoever they sell those deeds to function in the same way you have a self-interested monitor looking over how the ip is treated walt disney would never allow mickey mouse to appear in ways that were fundamentally untrue to his creation whereas if mickey mouse was subject to common ownership in which any old tom dick and harry could make mickey mouse cartoons and products we'd see poor mickey abused and debased another context in which the tragedy of the commons is usually evoked by libertarians is in environmental matters it is said that a private forest owner seldom has the problem of over forestation because he has a vested interest in maintaining the value and productivity of his forest when woodlands and jungles are held in common ownership however they are subject to over frustration which is to say too many people are chopping down trees in the absence of a monopoly right over those trees this is also true of ip we do not need to create hypothetical scenarios in which hundreds of people are creating second-rate star wars films or mickey mouse cartoons or batman comics or anything else because there are living examples of the tragedy of the commons due to lapsed copyright or public domain all over amazon let me use an example of one of my most beloved authors thomas carlisle carlisle died in 1866 and his books are long out of copyright even with the 70-year rule carlisle's books would have been public domain by 1936 at the latest the last official edition of his works was the chapman and hall centennial edition originally published in 1895 to mark 100 years since carlisle's death and the final reprint was in 1907. even today this 30 volume complete works of carlisle edited by henry duff trial is the definitive edition and it is printed by cambridge university press other scholarly presses also produce high quality editions of his individual works for example yale brought out this excellent edition of on heroes and hero worship however because there is no self-interested monitor watching over the carlisle estate unless you are a trained scholar like me you'd not know that these editions exist at all if you search amazon for books by thomas carlyle you are confronted by the ip equivalent of the tragedy of the commons what you'll find is pages upon pages of low quality reprints by two-bit presses with random front covers no scholarly notes no indexes no editors these parasitic presses are not so much helping to keep carlisle's memory alive as they are doing intellectual violence to him by offering the equivalent of discount scalper tickets to jump over the fence to gain access to carlisle's dream world the fundamental problem is one of over supply there are simply too many presses bringing out low quality editions of carlisle and there is no self-interested monitor to enforce quality control contrast that with an author who is in copyright such as george r r martin and you quickly find that no such problems exist since he has granted harper voyager monopoly rights to print his work there is no question as to which are the definitive editions since you are not confronted with endless pages of second-rate versions this is the world of ip while this the tragedy of commons you see on carlisle's page is the world that the anti-ipas want are you sick of hearing about marx and keynes do you want to know why neoclassical economics is so flawed have you ever wondered how to work out the marginal productivity of a burger bun do you want to level up your econ knowledge buy it now 350 pounds foundations of economics foundations of economics i'm here foundations of economics get it now so let us turn now to stephen kinsellas against intellectual property and see how he justifies wanting this awful state of affairs he suggests that the principle of scarcity is at the root of the need for property rights and pulls on this quotation from hans hermann hopper's theory of socialism and capitalism to make the point this is hopper only because scarcity exists is there even a problem of formulating moral laws insofar as goods are super abundant free goods no conflict over the use of goods is possible and no action coordination is needed hence it follows that any ethic correctly conceived must be formulated as a theory of property that is a theory of the assignment of rights of exclusive control over scarce means because only then does it become possible to avoid otherwise inescapable and unresolvable conflict kinsella then evokes locke's homesteading principle to justify property rights when it comes to land and physical goods before turning to say this principle cannot apply to ideas as i p rights tried to do he argues and this is kinsella the problem with ip rights is that the ideal objects protected by ip rights are not scarce and further that such property rights are not and cannot be allocated in ance with the first occupier homesteading rule as will be seen below but already this is nonsense because kinsella whether deliberately or not misses a crucial point made by both lock and hopper that is in the absence of property rights the goods of the world have the appearance of abundance this is what leads to the tragedy of the commons in the first place when the hunter-gatherer picks a berry from a bush or kills a deer in the woods he or she does not replace either good but rather wanders on to the next bush or woods in search of yet more berries and deer some hunter gatherers are kept from over hunting and over gathering by the inefficiency of their methods which limits them to near subsistence levels and therefore too small populations but this is not sustainability because they are still taking non-renewable resources without replacing them there is evidence that early hunter-gatherers from around 13 400 years ago hunted over 30 mammal species including mammoths mastodons and giant armadillos to extinction now i have already shown you an example of how an author like thomas carlisle is being over hunted in real life in a case of the tragedy of the commons on amazon these low quality editions risk devaluing the carlyle cannon to such an extent that finding authentic texts of his presented in a format worthy of the golden ticket becomes impossible and he will in effect go extinct i believe this would happen very quickly should a ip estates such as harry potter star wars or game of thrones fall into the public domain they would in effect be hunted to extinction in exactly this way through chronic oversupply of content kinsella argues that where the dream worlds are concerned there is no genuine scarcity only artificial scarcity but also that is not true the supply of song of ice and fire stories is limited to the mind of george r r martin and the supply of golden tickets to his dream world is limited by the monopoly right he has granted to his publisher eradicate that monopoly right and we will see a glut of additions of increasingly low quality such that access to martian's dream world will be utterly devalued eradicate martin's soul right to supply song of ice and fire stories and the market will suffer from an avalanche of awful fanfic effectively destroying his dream world if you thought season 8 of game of thrones the tv show was bad you haven't seen anything yet this franchise and all others would be destroyed extremely quickly reduced to the level of unauthorized non-canon star wars novels rightly forgotten to the dustbin of history and again if you thought the last jedi was bad you ain't seen nothing yet why is it that anti-ip advocates simply forget that the tragedy of commons is a thing when they discuss property rights and ip kinsella goes on to argue that ideas can be homesteaded like land can because they are not physical and therefore cannot be owned the problem with natural rights defense of ip he says then lies in the argument that because an author inventor creates something he is thus entitled to own it the argument begs the question by assuming that the ideal object is ownable in the first place once this is granted it seems natural that the creator of this piece of property is the natural and proper owner of it however ideal objects are not ownable he simply states he justifies this by redefining locks mixing the land with labor by the concept of occupancy so in kinsella's conception it's not mixing the land with labor it's occupying the land possessing it as he puts it in this way he denies the pro-ip argument put forward by ram and rand about authors being the natural owners of their work as a reward for productive work he then states and again i quote thus because ideas are not scarce resources in the sense that physical conflict over their use is possible they are not the proper subject of property rights designed to avoid such conflicts but the preceding argument the argument that kinsella lays forth simply does not show this in what sense does redefining locks mixing labor with the land to occupying the land demonstrate that physical conflict over ownership of an idea is not possible as i said earlier it is easy to imagine a situation on the free market whereby walt disney would hire a security company to protect the distribution and sale of mickey mouse products why wouldn't there be physical conflict over a 5 billion a year asset furthermore it is clear that time has a value to people that we in some sense own our own time and that taking one course of action imposes an opportunity cost on all other courses of action if time were not our own the austrian justification for wage labor would sink so we must de facto own our own time even though it has no physical properties or characteristics and cannot be seen so i i don't know how kinsella deals with time because he doesn't really mention it on these points kinsella only points back to hopper he says quote as hopper has transiently shown one cannot have a property right in the value of one's property but only in its physical integrity okay so let's go back to the source and see what hopper said first does he even say this if you go to pages 139 to 141 of his book hopper is actually talking about how human values manifest in action he says one only experiences things because they are things on which positive or negative value can be placed in the course of action only by an actor that is to say can things be experienced as value laden and even more generally only because one is an actor does one have conscious experiences at all as they inform about things which might be valuable for an acting person to know more precisely with every action an actor pursues a goal he wants to produce a definite result or be prepared for a result that he cannot prevent from happening whatever the goal of his action which of course one could only know from experience the fact that it is pursued by an actor reveals that he places value on it so to speak are you seeing this extreme emphasis on the physical that kinsella implies because i'm not in fact hopper goes on to discuss the fact that taking actions in time always imposes opportunity costs as i just did i mean i hate to say this but these three pages of hopper simply do not say what kinsella says they do for one thing they aren't even about property rights hopper is discussing the praxiological justification for misesian a priorism as you can see for another hoppy hopper only discusses action time and value in this passage he does not mention physical tangible goods or the concept of property rights so i am not quite sure how or why can seller thinks this passage supports his point or indeed how he thinks this is hopper's transiently showing one cannot have a property right in the value of one's property but only in its physical integrity since he doesn't even mention these things now in fairness kinsella provides another paid reference page 247 footnote 17. let's take a look at that to ensure that we haven't missed something i want to do my homework here in the um spirit of intellectual charity and rigor and thoroughness well houston we have a problem because here is page 247 of hopper's theory of socialism capitalism uh it doesn't have a footnote 17. now i checked my personal paperback copy and well in that page 247 is part of the index so i figured something was up here because the quotation that he the reference he gave to the previous pages didn't line up with what he said it was and now i've come across this footnote that doesn't exist what's going on so where anyway i checked the bibliography to see the specific edition kinsella was using and apparently he was using the original 1989 version and it turns out that my printed copy is a second edition from 2013 and the one on the mesa site is a slightly older edition from 2010 which is different from my one but also different from the one kinsella was using anyway after much searching around i have located the original 1989 version here on google books and sure enough page 247 should contain a note so let's have a look here we go oh it's just a reference to mises and note 17 isn't even on page 247 it's on page 246. okay i think that'll do when it comes to locating this footnote i've given seller every chance i consulted three different versions of the book i can only assume that the reference is wrong or that you made a mistake however in the interest of absolute fairness i want to double check pages 139 to 141 in this edition to see if hopper is saying anything different there than when i checked earlier because it didn't add up so let's take a look okay this does look like a different passage and i can see right away the word physical is right there in italics so let's take a look this seems more like it and i've left all of this stuff in so to show you that i am doing this properly i'm not kind of cutting corners i'm showing my work okay anyway hopper the first such specification is that ing to the capital the capitalistic ethic aggression is defined as an invasion of the physical integrity of another person's property socialism instead would define aggression as an invasion of the value or psychic integrity of another person's property okay so this seems finally we've got to the heart of kinsella's reference it just took me quite a long time to find it so let us quote hopper at length here because this i think is the crux and the meat of the entire argument hopper why is this idea of protecting the value of property unjustifiable first while every person at least in principle can have full control over whether or not his actions cause the physical characteristics of something to change and hence also have full control over whether or not those actions are justifiable control over whether or not one's actions affect the value of someone else's property does not rest with the acting person but rather with other people and their subjective evaluations thus no one could determine ex-ante if his actions would be classified as justifiable or unjustifiable one would first have to interrogate the whole population to make sure that one's planned actions would not change another person's evaluations regarding his own property and even then nobody could act until universal agreement was reached on who is supposed to do what with what and at which point in time clearly for all the practical problems involved one would be long dead and nobody would argue anything any longer before this was ever accomplished but more decisively still the socialist position regarding proper property and aggression could not even be effectively argued because arguing in favor of any norm socialist or not implies that there is conflict over the use of some scarce resource otherwise there would simply be no need for discussion however in order to argue that there is a way out of such conflict it must be presupposed that actions must be allowed to be performed prior to any actual agreement or disagreement because if they were not one could not even argue so yet if one can do this and socialism too must assume that one can insofar as it exists as an argued intellectual position then this is only possible because the existence of objective borders of property that is borders which every person can recognize as such on his own without having to agree first with anyone else with respect to one's system of values and evaluations socialism too then in spite of what it says must in fact presuppose the existence of objective property boundaries rather than of borders determined by subjective evaluations if only in order to have any surviving socialist who can make his moral proposals okay well let's pause here before continuing because there's a lot to take in first i should point out that hopper here is not talking about intellectual property at all he is talking about the marxist claim that workers should have a claim to own the factories at which they work because of quote-unquote surplus value second i am failing to see how walt disney's ownership of mickey mouse or george rr martin's ownership of the song of ice and fire and the sale of golden tickets to gain access to those dream worlds fails hopper's test he said quote borders which every person can recognize as such on his own well who imagines that mickey mouse is their creation who imagines that they have the right to make and sell mickey mouse cartoons without walt disney's permission who imagined that they might be able to write new novels in the song of ice and fire series and then sell them in competition with george rr martin without his permission and who imagined than in a total free-market society in the imagined and kapestan that you do any of these things without reprisal from disney or from martin or from martin's publishers they would move ruthlessly to protect their assets using private security to do so if necessary and no private judge on the free market system would deny that mickey mouse does in fact belong to walt disney that the song of ice and fire does in fact belong to george r.r martin and so on and so forth anyone who is in touch with hans herman hopper should write to him and ask him free of any context does walt disney own mickey mouse does george r r martin own the song of ice and fire in fact go one further ask him if hands him and hopper owns democracy the god that failed or let us use reductio ad absurdum to make the point instead does russell grant the fat astrologer own democracy the god that failed does geoffrey tucker the gay libertarian own mickey mouse these questions are obvious absurdities because we know that grant or tucker have absolutely no claim whatsoever to the intellectual properties of either mickey mouse or uh democracy the god that failed and neither do you everybody automatically recognizes the right of the creator to ownership anyway hopper continues the socialist idea of protecting value instead of physical integrity also fails for a second related reason evidently the value of a person for example on the labor or the marriage market can be and indeed is affected by the people's physical integrity or degree of physical integrity thus if one wanted property values to be protected one would have to allow physical aggression against people however it is only because of the very fact that a person's borders that is the borders of a person's property in his body as his domain of exclusive control with which another person is not allowed to interfere unless he wishes to become an aggressor our physical borders inter-subjectively ascertainable and not just subjectively fancy borders that everyone can agree on anything independently and of course agreement means agreement of independent decision-making units only because the protected borders of property are objective then that is fixed and recognizable as fixed prior to any conventional agreement can there be at all an argumentation and possibly agreement between independent decision-making units there simply could not be anyone arguing anything unless his existence as an independent physical unit was first recognized no one could argue in favor of a property system defining borders of property in subjective evaluative terms as does socialism because simply to be able to say so presupposes that contrary to what the theory says one must in fact be a physically independent unit saying it this is of course hopper's argumentation ethics famously but okay let's follow the logic in the case of ip imagine a world where walt disney had never existed could the argument over who owns mickey mouse even exist well no because presumably nobody else would have created mickey mouse in the first place let's try the same with george rr martin's song of ice and fire again you see the absurdity of even trying to do so since the creator of the dream world comes prior is in fact the precondition of the dream world itself and this is automatically as hopper says fixed and recognizable as fixed prior to any conventional agreement how could it not be and that my friends is where i turn it over to you except for this one last point a long time buddy of mine jay green river has asked me about the case of second-hand books he says if it is the ideas being sold and not the pen and ink how can i justify the sale of secondhand books being legal the answer to this is simple if you accept my analogy of a book being like a golden ticket to a dream world you are simply selling on that ticket there is no crime here since originally the author got paid and you are simply selling on your access to the dream world to somebody else i hope that clears up that little point and again i will turn it over to you interested to hear all of your thoughts now available at the academic agency sharpen your analytical mind and your argumentation skills with foundations of logic the course draws on the ancient wisdom of traditional logic that students learned for over 2000 years from the time of aristotle through to the medieval schoolmen right down to the 20th century sign up now for a free preview lecture be sure to like this video and subscribe and if you really like my content maybe consider joining the channel or donating or maybe even buy a mug i am grateful for all of your support now get out