What is Property


#1

I’m not going to continue the subject of whether current IP laws are helpful or harmful because I feel we had plenty of time to hash that idea out. What I meant be “transparently, factually false” was Platonism. You raise an alternative way that property could predate human thought by presenting animals as having a kind of property.

I think the issue here is that property is not a thing that you prevent others from using, it is a thing you have a right to prevent others from using. Many animals have property in the sense that they will fight or kill things that infringe on their “property” but that standard of property is one that condones murder and theft as a legitimate way to acquire property. If my “property” becomes your “property” the moment you take it from me be force, I’m not sure what the word “property” is doing there - it seems like, “thing I have” would be a better description.

Still, there are probably examples of animal behavior where the culture enforces some kinds of rights of ownership, and that’s a good point. A concept of people owning things may go back before we had language to express it. I still find the idea of secrets being property very dubious. Without a legal framework to back that up, most of the time when someone finds out your secret the response of society is, “Well, if you didn’t want them to know, you should have kept it secret.”

Like I said, a person can’t use their ownership of knowledge of their affair to sue their spouse who is using that intellectual property to financially harm them with a divorce, so clearly “secrets” are not property. At some point we obviously developed a distinction between a certain kind of secret that people use in production and any other secret, but that distinction would have been made in a response to a social ill resulting from these secrets being uncovered (or more likely from influence of wealthy people who didn’t want their secrets to be used by others). Grandma’s cookie recipe would be a secret about how to produce a particular good, but if I drop the recipe card in public I can’t claim a right to sue when someone else uses it, nor can I reasonably argue that it’s a defect in the law that I can’t. If I actually produced those cookies commercially and went and got the patent on that particular method of producing them then I it would make sense to call it my property to me. How do you distinguish my “intellectual property” from “things I happen to know that you don’t happen to know.” I feel like there has to be a distinction between those two things, and I don’t see what that distinction is if we call every secret property.


#2

Maybe, but “thing I have” might also be a better description for personal property, too. I mean, there’s the old saying that “possession is 9/10 of law”, not to mention “finders keepers, losers weepers.”

You may lose your exclusive rights to property if you divulge the secret, but that doesn’t mean others are free to extract the secret from you by force or that you can be forced to disclose the secret. The ability to lose a property right doesn’t make it not property.

The reason for trade secret law is that we didn’t want to encourage or require the sort of inefficient behaviour that would be required to ensure secrecy in large enterprises. It’s relatively easy for a proprietorship to keep things secrets and guard against leaks, as only a few people need to know and those people have a strong interest in keeping the secret. This is much less the case in the context of a huge corporation where wage-earning employees may be able to gain access to the secret. Thus, trade secret law still requires that you take reasonable efforts to keep the secret a secret (witness the secrecy surround the Coke recipe, which supposedly only a couple of people fully know), but protects against disclosures that could only be avoided through great inefficiency.

Trade secret law wouldn’t protect against that sort of lax secret-keeping, either. Obtaining a patent (which would be very unlikely in the context given, but might be possible in other contexts) is an alternative, but getting a patent would make the technology public knowledge and fully exploitable by others after 20 years. Trade secrets are often exploited for much longer periods of time and their secrecy prevents the innovation from being used as a source of inspiration.

Again, I think secrets are functionally property so long as they are kept. Like organs, they may not be legally protected as property, but other legal protections prevent other from being able to take them from you at will. Nobody can steal secrets unless they are given to them. But tell someone a secret and you’re treated the same as you would be if you abandoned personal property.


#3

I feel like this doesn’t address the affair example. And as for the negligence issue, if my recipe card falls out of my pocket in a street or if my iPod falls out of my pocket in the street then a person who finds it and isn’t aware of who lost it isn’t going to be charged with theft, but the law is still on my side if I can prove ownership. “Possession in nine tenths of the law” is a phrase to warn people about how bad things can happen to them if they aren’t careful. If I leave my bike outside a store without locking it, thinking I’ll only be a minute, and someone runs off with it, that’s still theft. “Finders keepers” doesn’t apply when someone breaks the window of your car and hotwires it.

I insist that there must be a distinction between “property”, “a thing I have right now”, and/or “a thing I will fight you for.” My friend’s purse doesn’t become mine because they ask me to hold it when they go to the bathroom. I can’t take things by force and then just say they are mine. I can’t use deception or coercion to get things from people (to a certain point).

Trade secrets are presumably nearly always shared with someone. If you share it with your competition then you are screwed. If you share it with your employee who becomes disgruntled and shares it with your competition to spite you, maybe you have some claim against them for a contract they violated, but unless society has specifically set up rules to protect you, you don’t have any claim against your competition.

This is precisely my point. There was a problem, we made a law to solve it. Before we did that, I don’t see how we can call secrets property. They are just things you know that you don’t want anyone else to know.


#4

Failing to keep a secret is the functional equivalent of abandoning personal property. I don’t see what this fails to cover.[quote=“Humbabella, post:3, topic:32377”]
If I leave my bike outside a store without locking it, thinking I’ll only be a minute, and someone runs off with it, that’s still theft. “Finders keepers” doesn’t apply when someone breaks the window of your car and hotwires it.
[/quote]You have legal protection if someone tries to beat a secret out of you, which is the functional equivalent of having your car hotwired. And if people have property rights to all these things, why do they lock them in the first place? Why not simply rely on this legal property right? Remember, its not long ago that you were arguing that having an abstract legal right to enforce copyright is of little use for the little guy who lacks the ability to enforce that right.

There’s no doubt that a legal distinction exists. But I’m simply saying that despite the legal difference, traditional trade secrets are functionally IP just as today’s trade secrets are.

Yes, but all this does is restate the motivation for modern trade secret law. Historically, knowledge of trade secrets would be restricted to the proprietors of a business, who have strong motivation to keep it secret. Even today, sharing trade secrets with rank-and-file employees is unlikely.

Yes, but the problem was that the property-like nature of trade secrets was being lost, and new laws simply restored the property-like nature of those secrets. And secrets aren’t just things you don’t want other to know, they are things that you can prevent other people from knowing and which others cannot force you to disclose.


#5

But as you said, you are only “abandoning” you trade secret if you fail to take due care to protect it. If someone rents a unit across the street and uses a laser microphone and a long distance lens to record information about your trade secrets that espionage, not your failure to keep the secret.

In the affair example, if the aggrieved spouse learned of the affair only because of espionage, we don’t consider that theft at all, and any indignation on the part of the spouse who was caught is usually shrugged at. Now, obviously this uses some kind of “you were doing a bad thing in the first place, don’t complain about the method someone else used to find out you were doing the bad thing.” And generally hiring a private investigator to follow your spouse around is not healthy for the relationship one way or another, but I don’t think anyone would suggest that it approached any notion of “theft.”


#6

Modern trade secret law would probably cover the laser-mic scenario, but traditional treatment of trade secrets would not. To the extent I’m arguing that traditional trade secret law is property like, I still don’t see the difference since it would also be lost once discovered, just like your affair “secret.”

More broadly, whether the method of gaining access to the secret (and I’m not sure that observable actions, especially when interactions between two people, are even best thought of as secrets) is legal/protected or not depends on a number of things above and beyond trade secret law. In the laser-mic context, privacy laws, such as the anti-wiretap/recording laws that exist in a number of jurisdictions, may prevent your laser-mic scenario just as well as modern trade secret law would.


#7

I’d like to think about another form of information ownership: privacy laws. Like other IP laws, they serve to legally protect information that would otherwise be free, and the legal protections they grant are thoroughly modern. I wonder, however, whether you would disagree with privacy laws on the grounds that they restrict the productive use of otherwise-free information. I wonder whether you would say that privacy laws are a degradation of society’s traditional right to freely use information as they see fit, or that the current (or recent) legal regime represents an historical high-water mark for privacy rights. Would you say that there was no such thing as privacy before the advent of privacy laws?


#8

Now I don’t know if this will sound weird to you, but I generally approve of or object to laws based on whether they do harm or good rather than based on an abstract philosophy. I object to drug laws because they have failed to curb the abuse of drugs (the only good they could do) and at the same time have created a great deal of violence and other damage. I don’t object to seatbelt laws because they do make people wear seatbelts more often and seatbelts are a net good as far as I know.

My objection to IP laws is that they are often used to stifle innovation rather than the promote it, as they are supposed to do. They are supposed to create an incentive for individuals to invent, but instead they create an incentive for individuals to play a system of law suits. As others have pointed out in the previous thread, Google and Apple both think the current tech patent system is broken and they are the ones who should be benefiting the most from it. When it comes to music the idea that we need to have laws to get people to make music is idiocy. Plus drastically enriching a small subset of individuals is damaging to society and unnecessary for the ends it is supposed to achieve.

I don’t mind that you walked away from the previous conversation thinking I was such an idiot, but if you did, I don’t know why you would want to further discuss this with me, I thought I’d signaled by no longer replying that I didn’t particularly care to discuss it with you, and this certainly hasn’t changed my mind on that.


#9

Google and Apple may complain about certain aspects of the current IP regime, but they also benefit tremendously from IP protections; I don’t
think there’s any doubt that they do think some form of IP laws are a good thing. On the other hand, there are very few artists, record labels, or movie studios who have spoken out against copyright as damaging to their operation. In all forms of property, lawsuits are a major enforcement mechanism and all property laws encourage lawsuits (although IP has the advantage of being only rarely enforced criminally).

And while it may be idiocy to think that we need laws to get people to make music, it is also true that professional recordings, music videos, and all of the other things that are so popular today are very expensive. Justin Bieber may have made music even without the incentive of IP protection, but without that IP protection he would have remained a largely-unknown singer and not the global phenomenon making high-production-value music that is enjoyed by millions. Of course the question remains of whether a few mega bands are better for society than a larger number of itinerant troubadours.

As for economic disparities and inequalities, I agree this is a problem. But its not a problem unique to IP regimes, and it’s typically thought that the government’s tax and spend ability is the best way to remedy these kinds of problems (and not only because they are capable of working across sectors).

Hey, you’re the one who started this thread on what property is, and argued that because there was no low protecting trade secrets as a property right they weren’t property. I’m not sure why the same argument cant be applied to informational privacy laws, which also protect secrets and confidential information. To my mind, both of these legal innovations are responses to modern technology and society that legally protect a right that had traditionally existed but did not require legal protection in order to be practically recognized; they are largely reactions to changes in society and the need for more formal enforcement mechanisms that these changes necessitate.


#10

I admitted long ago that I know I am insane for thinking that all property should be abolished. I think that’s what “we should do”, but it certainly isn’t what we can do, and my idea of who we are and what “should” means is too problematic and alien for me to attempt to defend. I’m the crazy one there.

I also agreed with one of the reforms you proposed - mechanical licensing for patents is a great idea. If you are still trying to argue that current IP laws are basically doing what they are designed to do but could probably use some fixing to patch up some undesirable outcomes then your sensible position is sensible.

I started this side thread to discuss the semantic issue of calling something property that wasn’t.

Do you understand why it couldn’t be applied to rocks, chickens or clouds? Different things are different.

In order to make the comparison between trade secrets and privacy you have to accept that the reason invading someone’s privacy is a problem is because it is economically damaging to them.

And laws against assault are there to legally protect materials that would otherwise be free for public use.


#11

Sure, but trade secrets and informational privacy are not different. Both are about information that someone wants to be kept secret, or to exercise agency over.

Many privacy advocates think that privacy should be given legal property rights, because that is the only way to make consumers understand how valuable they are. Instead of giving over reams of personal information when we shop at Amazon, use discount cards at supermarkets, or browse websites with cookie policies, we should be in the default position of owning that data and only give up those rights through actual financial transactions where it is purchased from us. In terms of medical-records privacy its clear that (in the US, at least) the financial ramifications of disclosing privacy information is a key reason why patients systematically under-disclose to their doctors and in excess of 100,000 patients per year die from issues that could have been avoided with full disclosure. Identity theft and data breaches are problematic because they can be economically damaging.

Assault typically protects bodily integrity, not “materials.” And a key difference between materials and information is that information is a public good that many people can enjoy simultaneously without depriving anyone else of that information. Whereas I saw that as a reason for granting some protection to the producers of that information, I think you see this as a reason why this form of property, in particular, should not be protected.

And at any rate I’ve argued that we have had what fundamentally amounts to property (and assault) rules before we had legal recognition of those concepts. Similarly we had functional trade secrets and privacy before law in these areas was created.


#12

And I 100% agree with this. I think that it absurd to look at those concepts through a modern lens and say, “aha, property”.

Slavery was also economically damaging to slaves, but that’s not why we ended it. Privacy advocates think that privacy should be given legal property rights because they live in the contemporary world where basically if something isn’t property it isn’t given any weight. In order to have power you have to speak in the language of the powerful.

(Also, the idea that this would protect people’s privacy is ridiculous. In reality Amazon would pay us a nominal fee for our information, which would be included in the price of the thing we were buying from them, in a complex contract that we’d scroll and click through, and then they’d own it and we wouldn’t have our current protections.)

I’m made of matter.


#13

That doesn’t make you a material. Or, as you might say, “I think that it is absurd to look at this concept through a modern lens and say, ‘aha, material.’”[quote=“Humbabella, post:12, topic:32377”]
Slavery was also economically damaging to slaves, but that’s not why we ended it.
[/quote]
Slavery is horribly inefficient and actually this is a key argument against modern slavery (which is conservatively estimated to cost at least $150 billion in efficiency losses per year).

I don’t think that’s true. Many privacy advocates think that measures like adequate and actual disclosure, opt-in procedures, and liability rules can adequately protect privacy interests. Similarly, many elements of the law operate not on the basis of property rights but on the basis of tort or contractual liability, which are all about the relationships between parties (you can only bring contract actions against the person who signed the contract, and tort actions are limited to those who have harmed you and/or those you are in a special relationship with) as opposed to the absolute property right of one person against everyone in the world.

Yes, but if there was an actual marketplace for information, there could be increased competition for your information rights, as well as the ability to shop without allowing Amazon to collect or use your data. If my data really belongs to me, Amazon wouldn’t be allowed to collect my data at all, but it would all reside on my computer (if I wished to save it). I could then sell my data to a competitor such as Wal-Mart, or more likely to a marketing firm, even though all my online purchases are at Amazon. Because the data is my property, I get to control who gets to see it and who uses it.

I obviously disagree because I think trade secrets, which were vigorously protected in historical times and can still be lost unless protected, shared enough of the key elements of property to be thought of as such.


#14

Exactly?

Yeah, and so if someone came up with an efficient model of slavery we’d get right on that right?

Fair enough, if the owner of the information retained control of it an only “licenced” Amazon to use it (e.g. Amazon can use their address to put an address label on a package and for not other purpose) then they may be more protected. I don’t think the reality would work out but that’s largely because of a distrust of law-makers.

Indeed, and it was that disagreement that led me to think, “Well, I guess we’ve both said all we need to say here.”


#15

Slavery’s is pretty much always going to be inefficient because it is essentially a monopoly that removes the supply curve in labour markets.[quote=“Humbabella, post:14, topic:32377”]
Indeed, and it was that disagreement that led me to think, “Well, I guess we’ve both said all we need to say here.”
[/quote]
Right, but I came backto make the point that there’s likely an inconsistency with how privacy is regarded: I mean, I really doubt people feel that we are living in the age of the greatest informational privacy protection man has ever known, even if that is legally the case, and even if they feel that IP’s protection of trade secrets has made this the era of the greatest IP protection.


#16

And if new, validated models show that’s not the case then slavery is it, right?

I would tend to agree that people don’t feel that way. I think our primitive concept of privacy has been shattered by modern reality. A some point in the past if someone walked in on you while you were changing then it was at worst embarrassing (well, unless you lived in a culture where they kill someone for that, who knows). Now the change room could be fitted with a camera too small for you to see that will stream your image directly to a site so that millions can watch.

I don’t know what that has to do with property. The issue is that the room you are changing in (unless you are making the mistake of changing in an unwise place) is supposed to be private. It’s private whether you own it or whether you are just visiting it as long as you have a reasonable expectation. If I ask to use your bedroom to change and you have a hidden camera in there you have to either turn it off or tell me about it, otherwise you are violating my privacy. If I change behind a bush in an otherwise public place and someone walks by and gets me on video camera they own that image. What’s the property?

I know if I change in a public place then I am abandoning my “property” which is the light that is bouncing off of my body, right? It feels like a strange warping on the concept of “abandoning property” to make it apply to a situation which is far more analogous to (to use an example I used before) leaving your bike outside a store for while you run in because you are only going to be gone for a minute. It’s putting your property down and hoping no one picks it up while your back is turned. Usually if I was going to claim I had a right to something because someone else abandoned it I would have to make a good case for why I believed they had abandoned it and even that they made a good faith effort to return it to its owner.

And even then, the issue isn’t that the image is my property. If you did change in the room with the hidden camera, you wouldn’t own the footage, it’s just that the person recording it may be charged. If I tap your phone line, you don’t own my recording, I’ve just committed a crime. This was the analogy to assault. If I punch you in the nose you don’t own the blood on my hand (or if you do, that’s not really the point), rather I have committed a crime.

If the problem with assault is that I own my body, then I should take the person who assaulted me to court and have them pay me the cost of the damages done to me through their wrongly appropriation of my body. I don’t think violations of privacy will be property covered by merely by giving ownership of information. How much could a person sue that secret voyeur for if the illicit recordings were made only for the voyeur’s personal enjoyment? That’s an attack much more akin to an assault than to theft.


#17

You would basically have to reinvent economics to mean something other than what it does in order to make slavery efficient. The same goes for pure communism. Incentives, for better or worse, matter.

The property is that some jurisdictions (mainly in Europe) essentially recognize a property right in things like this, regardless of whether you were in public or not. There are also things like anti-paparazzi laws, and England has a tort for breach of confidence. Even the US has long recognized torts for placing someone in a false light, intrusion of solitude, and public disclosure of private facts. As with IP laws, information has been granted various legal protections that are more or less property-like.

And again, many of your objections to privacy-as-property would also apply to modern-trade-secret-as-property, yet you insist that this is real property in a way that privacy is not.

That’s a reasonable objection, but it all turns on how we define abandonment. What if instead of leaving your bike unlocked outside, you put a quarter on the ground and left it there while you shopped? Or $1? Or a shoebox filled with $20,000? Legally you would have the same obligation that you have with the bike, but in practice I think you’ll agree the situations would be treated differently. This differential treatment of what is abandonment doesn’t make the quarter non-property but the $20,000 property, though.[quote=“Humbabella, post:16, topic:32377”]
And even then, the issue isn’t that the image is my property. If you did change in the room with the hidden camera, you wouldn’t own the footage, it’s just that the person recording it may be charged.
[/quote]If I infringe on your IP with my camera, my product, or my invention, it doesn’t mean you own it, either. The property right means I get to control what is done with it.

Yes, but we already have multiple laws covering multiple injuries that may arise from the same incident. The legal response to theft isn’t to simply restore ownership of the stolen item: the state can lay criminal charges and you can recover for any other damages as well. Ownership of information can be used to prevent uses you don’t agree with. And since your property has been stolen, you can possibly sue for damages including pain and suffering. On the penal side, voyeuristic endeavors have been criminalized much like theft has been.


#18

Well, if economics is a science then a new theory may turn things on its head (especially since it’s a pseudo-science that doesn’t actually predict things). All of this is beside the point, though. If you think the reason why we shouldn’t have slavery is economic rather than moral, just say so.

Well, actually I don’t, I accept that those are the terms we discuss it in.

So basically my analogy to assault works just fine, but you think there is also a case to be made for considering information that is supposed to be private as property.

Which basically leaves us exactly where we started. You like to call ideas people have that they don’t like sharing with other people property and I don’t.


#19

Well, for one thing I was talking about theft in the quoted text (recognizing that you don’t have a legal property right to your body), and for another Ive already said that people already conceptualize themselves as owning their body and their organs in a way similar to how people conceptualize owning personal information/secrets… [quote=“Humbabella, post:18, topic:32377”]
Well, actually I don’t, I accept that those are the terms we discuss it in.
[/quote]
So you don’t think modern trade secrets are property? The difference between modern and traditional trade secrets, vis-a-vis their associated property rights, was the whole impetus for this discussion.

Economics doesn’t predict things (or describe our world)? I suppose a new theory of gravity could turn things on its head, too.

What is the source and justification for morals? Why aren’t morals the same everywhere? Who gets to decide what is moral and what isn’t? I think that virtually all of our moral frameworks are essentially the outcome of utilitarian, efficiency-based thought processes (even if not articulated as such). You yourself have said that you “generally approve of or object to laws based on whether they do harm or good”: this is a utilitarian, efficiency-based argument, and not a natural law, morality-based argument.


#20

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