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Against Monopoly

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Monopoly corrupts. Absolute monopoly corrupts absolutely.





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Can you contract away fair use?

One thing that has always puzzled me is whether you can sign a contract agreeing to give up your fair use rights. My colleague David McGowan point to some legal opinions on the subject. The crude summary seems to be that contract law is state law, so hard to give a uniform rule, but that

I think it is fair to say that so far the federal cases interpreting state law have gone against finding copyright pre-emption of state contract law and have upheld contractual prohibitions on conduct that would qualify as fair use if done outside a contract: link here, link here.

He also refers to the ProCD opinion.

All of which raises the question: why isn't it more widespread? Why don't book and music publishers stick in a little fine print saying in effect "by purchasing this product I agree to give up all my fair use rights"?


Comments

I doubt that would stand in court.

Does fair use rights depend on my obtaining the product from a point of sale?

Are there certain rights that are inalienable? Is fair use one of them? If rights could be "given up" that easily, what stops me from putting "By accepting this job, I agree to not sue the company for paying me less than others working the same job, if so happens. I also agree to work for wages below minimum wage, if the management so asks."

I am sure I cannot put the above in my contracts. Why should publishers be able to do so?

I think the issue might ultimately revolve around how closely the Supreme Court sees fair use as connected to core free speech rights. So far, the Court has been rather obtuse on the issue, but has left the door open for potentially linking the two concepts together under certain circumstances.
The courts cannot recognise the inalienability of the liberty to copy - as otherwise they'd have to recognise that it had been unethically derogated by the privilege of copyright. Thus, whilst the privilege of copyright still stands, you can indeed alienate yourself from de minimis and fair use defences against infringement.

Abolish copyright and restore everyone's natural and inalienable right to make copies of the works they purchase, their own property.

As for the question "Why don't book and music publishers stick in a little fine print saying in effect 'by purchasing this product I agree to give up all my fair use rights'"?

The answer is that (unless enough corrupt judges find otherwise) shrinkwrap contracts are not binding, even on removing the shrinkwrap.

You have purchased a copyrighted work. The only thing that constrains the use of your property is copyright. A license from the copyright holder may restore some liberties otherwise suspended by copyright, and may specify conditions. You do not have to observe the conditions - even if you take the liberties - copyright infringement is always an option available to the purchaser.

A book could contain a contract, which the purchaser could accept if they wished, e.g. "If you sign and post us this contract surrendering your ability to claim a defence of 'fair use' in any copies you might otherwise make of this book, we will send you a $10 book token."

However, a book cannot coerce agreement from the purchaser - much as its publisher might wish such an ability. The same applies to anything 'protected' by copyright.

Contract law has become an abomination. I am not a lawyer, but it seems to me that a contract cannot be considered valid unless the two parties site down and sign the document. So-called "contracts" that become effective when one merely buys a product that is distributed for mass consumption should prohibited.

The argument that purchasing a product constitutes the buyer's "acceptance" is ludicrous. If that is the case, the buyer should have the equal right to leave their own version of a contract at the cash register that supersedes the other contract. If a company can impose a unilateral "contract" that takes away your rights, it seems that you should have a unilateral right to void that contract and impose your own conditions on the company. After all they accepted your money, so they are obligated to abide by your contract. Right!

Steve R.:

Right or wrong, it is not an abomination, but clever business. However, you must be aware that these kinds of restrictions have been around about as long as people have had trade. The Romans and Egyptians specified that one person could sell in a certain area, but not in another. Some products were restricted to some sellers.

As for accepting the terms of a contract on a label, you will never be able to get that changed because that is the essence of contract law. If you use a chain saw and get hurt by your actions, you are the responsible person, not the company providing the chain saw. You may not like that provision, but you will be unable to change that contract regardless of whether you like it or not. Cars come with the same provisions in the fine print. You do not need to accept the provisions, but neither do car companies and chain saw manufacturers need to sell to you.

Yes, when you buy a book, CD, DVD, VHS tape, etc., there are statements that you agree to certain terms in buying any of those products. If you do not like the terms, do not buy the product, it is as easy as that.

As for Crosbie's statement about violating copyright, he appears to be advocating breaking the law. I personally think that is a poor choice, but that is between you and your beliefs (because, as much as some Libertarians want to point at "depriving," from a protestant and Catholic viewpoint the sin is in the action of the taker, not in the act of depriving) and how closely you tend to follow the law.

Crosbie:

You will likely recall that the last time someone was tried for making copies of something that person purchased for their own use (cassette tape recording of an album they owned), the court found for the defendant. I suspect that courts would similarly find for the defendant in future cases given similar circumstances.

"clever business" does not make law. This raises the specter of Corporatism, that is that companies can make law, enforce law, and impose penalties at their whim and without due process.

You are correct that if one uses a chainsaw and does something stupid, it is your fault. I would not consider this to be an aspect of contract law.

As to "If you do not like the terms, do not buy the product, it is as easy as that." Is a tired and unrealistic argument, because every manufacturer uses this approach. In a sense this approach could be considered a type of "Monopoly" since virtually every manufacturer is using this strategy. I would think that "Against Monopoly" would be opposed to any industry wide practice that distorts the operation of the free market.

Furthermore, the consumer, because of this pseudo monopolistic practice has a lack of alternatives. Rather than live in the stone age, the consumer simply buys the product and ignores the restrictions as a form of civil disobedience. When the public initiates civil disobedience in response to onerous restrictions, the supposed "contract" becomes a meaningless abstraction. This will eventually lead to a disrespect by the public of contract law. If we are to have a civil society that respects contractual law, the law needs to establish a level playing field for both parties to a contract. The ability of one contractual party to unilaterally reach out and essentially strip the other party of all rights would seem to be an anathema to Libertarian thought.

Steve:

I am unable to speak for the others on this web site. However, one aspect of Libertarianism is to the freedom to be your own person and set your own rules (within the limits of the law, of course). If a business says that the only way they will sell to a customer is that the customer must wear a shirt, pants, and shoes, and they enforce those rules, then the customer will be unable to purchase product until those conditions are met.

Many places banned cigarrette smoking well before laws were passed banning smoking. Certain organizations that sell dogs will only do so after an inspection of the buyer's home and an interview. Certain builders will only build on certain conditions. The list goes on. Again, if you do not like those terms, do not buy. A seller is only a willing seller to the extent that the seller sets terms and the buyer either agrees to the term or the buyer is not a buyer.

You do not have to like it, but how can you require a seller to sell if you will not meet their terms? Easy, you cannot.

I accept your logic, but I have my own belief system that "precludes" me from accepting the notion that sellers are entitled to that degree of power. So let's say that we are in a mutual standoff.
I accept your logic, but I have my own belief system that "precludes" me from accepting the notion that sellers are entitled to that degree of power. So let's say that we are in a mutual standoff.
"as much as some Libertarians want to point at "depriving," from a protestant and Catholic viewpoint the sin is in the action of the taker, not in the act of depriving"

This is a perfect example of the twisted morality that's used to support copyright: even though the act of copying harms no one, it's supposedly wrong because it ends up with someone possessing something that they don't deserve to have -- protecting people's rights is less important, in this philosophy, than punishing the unworthy.

That very same twisted morality is behind prohibitions on sex, dancing, and all other forms of pleasure that don't come as the result of hard work: even if it doesn't harm anyone else, you don't deserve pleasure unless you've earned it. If you want to preach that in church, go ahead, but it has no place being used as the basis for any laws.

Jesse:

The basis for "natural law" is as much religion as any other law. Regardless, I believe that it is wrong for a person to take something that does not belong to them. Now, you can twist morality all you want, but I still believe the taking is what is wrong.

Lonnie, luckily for those of us who are ready to live in the 21st century, the view that it's wrong to enjoy something you don't "deserve" is dying out (along with the related prohibitions on sex, dancing, and so on).

Ask anyone how they'd react if you told them their car had been stolen, and then they looked out the window and saw it was still right there in the driveway, because by "stolen" you actually meant "copied". I think you'll find that the vast majority of people care more about hanging onto their own property than punishing the unworthy.

Jesse:

I have no idea what don't "deserve" means. My comment had nothing to do with "deserve" and everything to do with actions and intent. If a person is sitting on a bench, asleep, and there is an unsealed envelope next to that person containing a manuscript for the greatest novel ever written, and someone make a copy of the manuscript and replace it exactly as that person found it, did that person commit a crime? According to you, the person who was asleep was never deprived of anything. The owner cannot claim trespass because he was on a public bench. So, the sleazy, law-breaking, scumbag copier did nothing wrong. You have really screwed up morals.

Incidentally, the guy on the bench woke up, saw the copier with the copy in one hand and his envelope in the other, pulled out a gun and shot the copier dead. Sorry about that. The court acquitted the guy because they treated taking of the paper copy as theft and the author was stopping a crime in progress.

Incidentally, the number of teens that said they are paying for the music they are getting has risen from 20% two years ago to 28% a year ago and is now 36%. I guess more teens are joining the 21st century by recognizing it is wrong to make a copy of something that does not belong to them.

Oh, and I have no particular prohibitions against sex, dancing, or any other legal activity. I do have prohibitions against copyright infringement, trademark infringement, patent infringement and trade secret misappropriation, since the person owning the rights to the aforementioned rights have been deprived of their constitutional rights.

Lonnie, when you say "take something that does not belong to them", you're saying a person only deserves to obtain a copy of a song, movie, etc. if he has paid for it. Couch it in the terminology of property if you like, but it means the same thing: people by default don't deserve to access this material, and they can only become worthy by giving something up.

Can't let anyone have something they don't deserve, right? No matter whether or not it comes at someone else's expense. That is exactly the message you convey by focusing on what the copier obtains rather than what the other person loses.

"You have really screwed up morals."

That's rich, coming from someone who just condoned murdering anyone who dares to copy his papers! I'm quite proud not to share that wretched, pathetic philosophy of greed and domination you call a moral code.

"Incidentally, the number of teens that said they are paying for the music they are getting has risen from 20% two years ago to 28% a year ago and is now 36%. I guess more teens are joining the 21st century by recognizing it is wrong to make a copy of something that does not belong to them."

Yes, surely it has nothing to do with the growing convenience of legal download services, which have been slowly catching up to P2P for the past decade, and have only recently started offering DRM-free tracks in significant quantities.

Lonnie, when you say "take something that does not belong to them", you're saying a person only deserves to obtain a copy of a song, movie, etc. if he has paid for it. Couch it in the terminology of property if you like, but it means the same thing: people by default don't deserve to access this material, and they can only become worthy by giving something up.

If by giving something up, you mean money, then yes, people only deserve items that have value when they give something up. To couch it in different terms, all things that have value will be paid for one way or another, or they lose their value and will no longer be produced. Simple economics.

Can't let anyone have something they don't deserve, right? No matter whether or not it comes at someone else's expense. That is exactly the message you convey by focusing on what the copier obtains rather than what the other person loses.

I am unsure of what this means. "Deserve" is a relative term. Our society does not define anything that people "deserve," beyond what is encoded in the "Bill of Rights." You deserve opportunities, nothing more. Thus, you have to figure out how to pay for food, clothing, shelter, entertainment, etc. You only "deserve" them if you earn them.

"You have really screwed up morals."

That's rich, coming from someone who just condoned murdering anyone who dares to copy his papers! I'm quite proud not to share that wretched, pathetic philosophy of greed and domination you call a moral code.

Did I condone murder, or did I condone defense of property? I will always encourage someone to defend their property. As for "greed," I fail to see how that is "greed" in any sense of the word. The manuscript was simply that, a secret document that the author was currently unwilling to share with anyone, and the copier violated that property right. I find it sad that you advocate a socialistic view of property.

"Incidentally, the number of teens that said they are paying for the music they are getting has risen from 20% two years ago to 28% a year ago and is now 36%. I guess more teens are joining the 21st century by recognizing it is wrong to make a copy of something that does not belong to them."

Yes, surely it has nothing to do with the growing convenience of legal download services, which have been slowly catching up to P2P for the past decade, and have only recently started offering DRM-free tracks in significant quantities.

I was merely pointing out that copying is actually decreasing, which tells me that the wave of the future may not be copying, but paying. From the level that we were talking about, I do not see the reasons why copying is declining to be relevant at all. From a capitalist viewpoint, suppliers are trying various techniques to bring value to an audience that apparently found no value in a provided service. While I never condoned copyright infringement, I think it is a positive things that suppliers are seeking ways of bringing additional value to provide additional incentive for people to not break the law.

To couch it in different terms, all things that have value will be paid for one way or another, or they lose their value and will no longer be produced. Simple economics.

That's true, but it's irrelevant. The copies themselves have essentially no value beyond the cost of duplication; the value is in the author's labor. You don't need copyright to get paid for labor.

You deserve opportunities, nothing more.

If you read a story, you have the opportunity to tell it to someone else or write it down; if you meet someone who knows a story, you have the opportunity to learn it from him or ask for a copy. Copyright takes those opportunities away.

Did I condone murder, or did I condone defense of property?

You condoned murder. Killing someone for holding your envelope in his hand is murder. Is that really so hard to understand?

As for "greed," I fail to see how that is "greed" in any sense of the word.

Prizing a document over another person's life? If that isn't greed, then nothing is.

I find it sad that you advocate a socialistic view of property.

I find it sad that you advocate a sociopathic view of human life, and even sadder that you think anyone who opposes murder in this situation is a socialist.

To couch it in different terms, all things that have value will be paid for one way or another, or they lose their value and will no longer be produced. Simple economics.

That's true, but it's irrelevant. The copies themselves have essentially no value beyond the cost of duplication; the value is in the author's labor. You don't need copyright to get paid for labor.

I disagree. Copies have substantial value depending on the situation, and the proof is quite easy.

People make individual copies of music in spite of the fact that these copies have the potential to cost them time in jail as well as a substantial fine for each copy. Thus, one copy has significant value to some people.

With respect to a book, sales of which have held up in the digital world, an unpublished manuscript from a famous author or soon-to-be famous author may well be worth millions of dollars, so the theft of a copy could be a felony. It still remains a crime of property according to the law.

I also absolutely disagree that the value of the manuscript is in the author's labor. Value is set by purchasers. Since the buyers for manuscripts are typically publishers, and since publishers often bid for unpublished manuscripts, the price will be set by the perceived demand for books and other rights that may be sold.

You deserve opportunities, nothing more.

If you read a story, you have the opportunity to tell it to someone else or write it down; if you meet someone who knows a story, you have the opportunity to learn it from him or ask for a copy. Copyright takes those opportunities away.

Yes, if you read a story you have the opportunity to tell it to someone else. However, if you write it down you may have committed copyright infringement. Incidentally, what has copyright taken away from you? You have the opportunity to purchase a copy of a book. You may burn the book, throw it away, give it away, use it as a paperweight, and just about anything else you can think to do with that copy of the book that you have purchased. The only thing you are prevented from doing is creating a copy of the book, which would violate the author's constitutional rights granted to the author by the people of the United States of America.

Did I condone murder, or did I condone defense of property?

You condoned murder. Killing someone for holding your envelope in his hand is murder. Is that really so hard to understand?

If someone enters my house uninvited and I shoot them and kill them because they have violated my property rights, it may be murder, but it may also be justified homocide.

If someone takes a diamond ring that might be worth $1 million in some markets, and I shoot and kill the person attempting to take the ring, it may be murder, but I am also defending my property from a criminal who obviously is attempting to wrest that property from me. The fact that the person taking the diamond claims it has no value to them is irrelevant.

How are these situations any different from someone taking my million dollar manuscript, making a copy, and is then in the process of stealing a copy that was not theirs to make? Does it make any difference that that person does not consider the manuscript to have value beyond the cost of replication? No, because the law will define the value of the manuscript as the value it would bring on the open market. Indeed, this issue has already been addressed in courts. When a person steals an item for which there is no established value, experts are brought forward to estimate the value, which can define what level felony has been committed.

As for "greed," I fail to see how that is "greed" in any sense of the word.

Prizing a document over another person's life? If that isn't greed, then nothing is.

It is unfortunate that a person was foolish enough to challenge the property rights of someone with a gun. I see people killed nearly every single day in Indianapolis, which is close to me, because someone violated the property rights of another person. Do I value sanctity of my property over the life of a person entering my premises? Since I would shoot a person entering my home uninvited after inviting them to leave, and they refuse to leave, then I must value the safety of my home over a human life. Would I shoot someone attempting to take something of value that belongs to me or my family? Perhaps. It depends on the circumstances. Is that greed? My motivation was not to gain something that was not already mine, it was merely to retain what was already mine. How can that be greed? The definition of greed is:

An excessive desire to acquire or possess more than what one needs or deserves, especially with respect to material wealth: "Many . . . attach to competition the stigma of selfish greed" (Henry Fawcett).

I do not believe keeping property I already own and attained through the sweat of my brow is greed.

I find it sad that you advocate a socialistic view of property.

find it sad that you advocate a sociopathic view of human life, and even sadder that you think anyone who opposes murder in this situation is a socialist.

Definition of sociopath: One who is affected with a personality disorder marked by antisocial behavior.

I do not considered defending myself and my valuable property anti-social. Now, killing someone over the theft of bubble gum would be anti-social and possibly sociopathic. Killing someone over the theft of clothing items from my car is sociopathic. However, stealing my car, and threatening me to do so demands an affirmative response, if it is possible to do so. That is not sociopathic, that is protecting oneself and one's valuable possessions.

People make individual copies of music in spite of the fact that these copies have the potential to cost them time in jail as well as a substantial fine for each copy. Thus, one copy has significant value to some people.

And yet the second copy adds no additional value: no one fills their hard drives with millions of identical copies of songs they've downloaded, even though it's easy, fast, and presents no additional risk!

What you've proved is that having access to music is valuable. But an individual copy of a song has virtually no value; it only provides value if it provides access that the user didn't already have.

With respect to a book, sales of which have held up in the digital world, an unpublished manuscript from a famous author or soon-to-be famous author may well be worth millions of dollars, so the theft of a copy could be a felony.

Again, the value is in gaining access to the work. Two copies of that manuscript are worth little more than a single copy.

Incidentally, what has copyright taken away from you? You have the opportunity to purchase a copy of a book. You may burn the book, throw it away, give it away, use it as a paperweight, and just about anything else you can think to do with that copy of the book that you have purchased. The only thing you are prevented from doing is creating a copy of the book, which would violate the author's constitutional rights granted to the author by the people of the United States of America.

Well, you've just answered your own question, haven't you? Copyright limits my freedom to speak and write. "Creating a copy of the book" actually encompasses an infinite number of acts: for any given copyrighted work, there are an unlimited number of things I'm not allowed to say or write because that would constitute infringement.

If someone enters my house uninvited and I shoot them and kill them because they have violated my property rights, it may be murder, but it may also be justified homocide.

No, it's only justified in self-defense. If you have no reason to fear for your safety, if you kill an intruder just because you don't want him setting foot on your property, then you are a murderer and you belong in prison. Simple as that.

How are these situations any different from someone taking my million dollar manuscript, making a copy, and is then in the process of stealing a copy that was not theirs to make? Does it make any difference that that person does not consider the manuscript to have value beyond the cost of replication?

What makes a difference is that you haven't lost anything. If he gives back your manuscript after making the copy, you're right back where you started. He's gained something (his paper now has a pattern on it that wasn't there before), but you've lost nothing.

I do not believe [murdering anyone who handles] property I already own and attained through the sweat of my brow is greed.

Then you have no business lecturing anyone else on morality.

I do not considered defending myself and my valuable property anti-social.

I'm not surprised. Most sociopaths manage to justify what they do.

People make individual copies of music in spite of the fact that these copies have the potential to cost them time in jail as well as a substantial fine for each copy. Thus, one copy has significant value to some people.

And yet the second copy adds no additional value: no one fills their hard drives with millions of identical copies of songs they've downloaded, even though it's easy, fast, and presents no additional risk!

You are comparing two different issues. The manuscript was unreleased and in my possession. In fact, perhaps I wanted to keep my hard-wrought manuscript to myself, because I am selfish. In that case not only is this individual threatening the sanctity of my property, but the sanctity of my privacy. This felonious criminal is one of the most insidious creatures I can think of, short of someone committing unprovoked murder, and deserves severe punishment.

What you've proved is that having access to music is valuable. But an individual copy of a song has virtually no value; it only provides value if it provides access that the user didn't already have.

We get to the crux, do we not? His access to my manuscript, the sole copy in the universe, was worth the risk of being killed.

With respect to a book, sales of which have held up in the digital world, an unpublished manuscript from a famous author or soon-to-be famous author may well be worth millions of dollars, so the theft of a copy could be a felony.

Again, the value is in gaining access to the work. Two copies of that manuscript are worth little more than a single copy.

It is amazing that you prove yourself wrong with your own words. If the value is in gaining access, and access was unavailable to the first copy, then obviously the second copy provides all the value since it would be the only accessible copy. So, this heinous crime is truly a felony and the person enforcing his natural right to his property with bodily harm was justified.

Incidentally, what has copyright taken away from you? You have the opportunity to purchase a copy of a book. You may burn the book, throw it away, give it away, use it as a paperweight, and just about anything else you can think to do with that copy of the book that you have purchased. The only thing you are prevented from doing is creating a copy of the book, which would violate the author's constitutional rights granted to the author by the people of the United States of America.

Well, you've just answered your own question, haven't you? Copyright limits my freedom to speak and write. "Creating a copy of the book" actually encompasses an infinite number of acts: for any given copyrighted work, there are an unlimited number of things I'm not allowed to say or write because that would constitute infringement.

Except independent creation is a defense against copyright infringement, is it not? Fair use is a defense against copyright infringement, is it not? The only limitation you have on free speech is that you are not permitted to take the exact form of words that another has already created and claim them for your own. Essentially, there are an unlimited number of things that you may say or write, and only a limited number of things that you may not. The unlimited number of things overwhelms the limited.

If someone enters my house uninvited and I shoot them and kill them because they have violated my property rights, it may be murder, but it may also be justified homocide.

No, it's only justified in self-defense. If you have no reason to fear for your safety, if you kill an intruder just because you don't want him setting foot on your property, then you are a murderer and you belong in prison. Simple as that.

Ah, but if he has yet to set foot on my property, I would not be threatening to kill him, would I? It is only when the crime is in progress that I attain rightful justification to enforce my rights, or, as in the examples provided thus far, to return my rights, which are in the progress of being taken, to me.

How are these situations any different from someone taking my million dollar manuscript, making a copy, and is then in the process of stealing a copy that was not theirs to make? Does it make any difference that that person does not consider the manuscript to have value beyond the cost of replication?

What makes a difference is that you haven't lost anything. If he gives back your manuscript after making the copy, you're right back where you started. He's gained something (his paper now has a pattern on it that wasn't there before), but you've lost nothing.

Again, your words are mixed. You are telling me the value is in the access. Prior to the theft, I had all the access and thus was able to define the value to the access. After the theft, the criminal also had equal control of access. Therefore, I lost the very thing that gave my manuscript value.

I do not believe [murdering anyone who handles] property I already own and attained through the sweat of my brow is greed.

Then you have no business lecturing anyone else on morality.

And neither do you.

I do not considered defending myself and my valuable property anti-social.

I'm not surprised. Most sociopaths manage to justify what they do.

Except my justification is legal. Yours is poorly defined "natural right."

"This felonious criminal [who picked up my envelope without asking] is one of the most insidious creatures I can think of, short of someone committing unprovoked murder, and deserves severe punishment."

You have devolved into self-parody. Good day, psycho.

Jesse:

"This felonious criminal [who picked up my envelope without asking] is one of the most insidious creatures I can think of, short of someone committing unprovoked murder, and deserves severe punishment."

You have devolved into self-parody. Good day, psycho.

And you have devolved into condoning felonies. Good day, anarchist.

Jesse:

"This felonious criminal [who picked up my envelope without asking] is one of the most insidious creatures I can think of, short of someone committing unprovoked murder, and deserves severe punishment."

You have devolved into self-parody. Good day, psycho.

And you have devolved into condoning felonies. Good day, anarchist.

There's a lot of confident assertions about the law being made here by non-lawyers. I, an IP attorney, am not even sure what the law is, but I have a guess (I'd need to review the law on this to be sure). I think that the law is that in general, shrinkwrap and similar agreements can be binding, but if you try to do this to effectively get more protection than copyright law allows, this would probably not be enforceable on some kind of confusing monopoly/policy/preemption grounds. The state gives you a monopoly (copyright, or patent), but you are not supposed to abuse it or try to extend it.

(My main expertise is in patents, but I think something vaguely similar would apply for copyright. But for patents, for example, say you have 10 years left on the patent term: you may not do an 11 year license; this is considered to be an impermissible extension of your monopoly, and an abuse of it--of course, this makes no sense, b/c you could just do a fixed license fee instead, but whatever.)

As for libertarianism, my view is that the state is WRONG to strike down contracts that go beyond the patent and copyright type protections. I believe two consenting parties have the right to enter into whatever terms they want, even if they are stricter and more draconian than those set by modern IP law. But there are 3 strong caveats to this. First, I do not believe that something is part of the agreement *merely* because it is written down in the fine print of a click-wrap or similar type agreement; there needs to be true meeting of the minds (for example, suppose I sneak into the last clause of a long click-wrap agreement, "And the purchaser hereby agrees to give me half his income for the rest of his life." Well, I konw that you are just gonna click "yes" without reading, so I am aware that you are NOT consenting to this term, so there is no meeting of the minds; that should not be enforceable, and arguably neither should boilerplate, "unreasonable" terms in fine print that the publisher knows the customer is not even really aware of).

Second, there are many practical limits to the real-world enforceability of such terms. Suppose A sells B a book--rather, partial ownership in a book--but keeps partial ownership, the "right to show others." So B is like a borrower of the book, or a lessee--he has no right to use the book in such-and-such a way--he has no right to show it to his friend C. But let's say he does: C is visting and sees the book on the coffee table; and browses it. He thinks all he needs is B's permission, which he has; but in reality it is not B's book (completely); so C is seemingly trespassing against A's rights, by using A's property in a manner A has not consented to.

But I believe that in such cases, A does not always, or even usually win, vis-a-vis C. This is b/c by A permitting B access to an object where A's remaining rights in the object are not apparent to third parties like C, it is more A's fault than C's that C is unaware he has no permission. (My view here is similar to the way the law deals with stolen checks--usually if a check is stolen, and/or forged, the drawer is not liable or responsible for this; see UCC sec. 3-403. However, if the drawer is negligent (say, he leaves his checkbook in plain view when he knows unscrupulous people might take it), then he can't assert the forgery as a defense against others who took the check etc. -- see UCC - 3-406. NEGLIGENCE CONTRIBUTING TO FORGED SIGNATURE OR ALTERATION OF INSTRUMENT.

(a) A person whose failure to exercise ordinary care substantially contributes to an alteration of an instrument or to the making of a forged signature on an instrument is precluded from asserting the alteration or the forgery against a person who, in good faith, pays the instrument or takes it for value or for collection.

(b) Under subsection (a), if the person asserting the preclusion fails to exercise ordinary care in paying or taking the instrument and that failure substantially contributes to loss, the loss is allocated between the person precluded and the person asserting the preclusion according to the extent to which the failure of each to exercise ordinary care contributed to the loss.")

Third, I believe practicalities of the business world would tend to make abusive or unreasonable restrictions on the use of products purchased, or information dissemination, very unpopular, and thus to impose pressure on publishers/sellers to minimize all this.

Lonnie, as much as I'd like to let this thread go, I just have to note the hilarity in using the phrase "condoning felonies" as if it were some sort of grave accusation. I want the law to be changed so that certain illegal acts become legal (including felony copyright infringement), so of course I condone those acts, and quite proudly! You'll find the same thing anywhere people advocate a change in the law. Few of those people are anarchists, and you'd be begging to be written off as an ignorant troll if you were to call them that.

Likewise, you've been condoning the felony of murder: you'd like the law to be changed so that you can kill anyone who touches your envelopes without your permission. There's nothing inherently wrong with condoning an illegal act: not all illegal acts are equal. The act stands or falls on its own merits, not its legality. Thus, wishing that murder were legal in these situations doesn't make you an anarchist either, only a sociopath.

Jesse:

I just knew you would not stop...

No, I do not condone felonies. However, neither will I stand by while someone violates my constitutional rights. Realistically, would I ask the felon to drop the envelope and put his or her hands up? Yes. You know that either the felon will comply, or the felon will attempt to run away, hopefully without the envelope. My first shot would be in the air, along with a second warning. After all, I do not really want to go to jail.

You, on the other hand, advocate deliberately breaking the law by making an unauthorized copy (copyright infringement) and then taking the copy. Since you have already agreed that the value is in the access, and you are removing all control of access from the author, then you have taken whatever value the manuscript had. That is wrong from a legal viewpoint, a Libertarian viewpoint and a religious viewpoint. I see absolutely no justification for this action.

Lonnie, you seem to be confused. I've been advocating changing the law. "Copyright infringement" would no longer exist since there would be no copyright.

"Since you have already agreed that the value is in the access, and you are removing all control of access from the author, then you have taken whatever value the manuscript had."

Incorrect. The author still has access, which we agree is where the value is, so he has lost nothing of importance.

I see no reason for society to care about preserving his "control of access": no one except the author gains any benefit from allowing him to deny other people access, and even the author gains virtually nothing except a smug feeling, but the cost is the restriction of everyone's speech.

Jesse:

You seem to be confused. When the author had the sole manuscript, he had the only access, which meant that the only value his manuscript had, access, was maximized at that point. Once the criminal made a copy, the value of the author's control of access to his copy of the manuscript was reduced significantly, since the criminal could provide unlimited access to his copy at negligible or no cost. The author, who worked on his manuscript for five years, now has the risk that he will receive no return on his labor investment.

I see every right for society to preserve this initial access. First, there is the natural right of ownership of one's possessions. The criminal took the author's copy, without permission, and deprived the author of the only value the manuscript, according to you, had, which was access. Indeed, since you seem to place so much value on "depriving" as an aspect of theft (which I think is incorrect), then the criminal deprived the author of that control of access.

The moment people loss the natural right to privacy, then they lose everything. Big Brother at its worst. I am surprised that you are not defending the sanctity of the author's property vigorously. On the other hand, if you are a socialist your last statement makes perfect since. Take away the author's control for the good of society. That works for me. Not.

Lonnie, access is not a zero-sum game. There isn't some fixed quantity of access that has to be spread out equally among everyone who sees the work: if I have access to a manuscript, I don't become poorer every time a new person gains access.

(I might become sadder, if I'm the sort of asshole who derives his sense of self-worth from having things that other people don't have, but it isn't the government's job to cater to the emotional frailty of such people.)

"The author, who worked on his manuscript for five years, now has the risk that he will receive no return on his labor investment."

He willingly accepted that risk when he decided to devote five years of his life to writing a manuscript that no one had asked him to write or promised to pay him for.

Without a contract, labor isn't an investment, it's just an expenditure. You don't get a return on the labor you spend mowing your own lawn, or even mowing your neighbor's lawn unless he agreed to hire you. If you want to get paid for labor, you need to arrange the payment terms before you do the labor.

"The criminal took the author's copy, without permission, and deprived the author of the only value the manuscript, according to you, had, which was access."

Yes, that's true. But according to the scenario you described, the thief returned that copy as soon as he was done making a new one, so the author was only deprived of access for a few minutes.

Depriving a person of his property for a few minutes is still a crime, but the actual damages are negligible. It's barely worth reporting, let alone resorting to violence. Imagine that 911 call: "Officer, someone picked up the envelope I had next to me on this bench!" "Did you ask him to give it back?" "Actually, he gave it back on his own." "And nothing was missing when he gave it back?" "That's right." "Then have a nice day. *click*"

"I am surprised that you are not defending the sanctity of the author's property vigorously."

The "author's property" in this case is a stack of papers that was taken from a public place, without the use of force, and quickly returned, possibly even before the author noticed it was gone. Taking anything away from its rightful owner is wrong, even pocket lint, but you have to keep things in perspective. Perhaps what actually surprises you is my ability not to come unhinged over a minor transgression; don't worry, I won't sue you if you decide to cultivate the same ability in yourself.

"Take away the author's control for the good of society."

His control over everyone else's speech? Yes, please do: he never should've had it in the first place.

If you can come up with a way to preserve the author's "control of access" without giving him veto power over the speech of everyone else in town, I'd be glad to hear it. Until then, I don't see why his wish to be the Only One Who Knows This Story So Nyah-Nyah ought to outweigh everyone else's right to speak freely.

Jesse:

Your viewpoint is totally absurd. So, if my journal, with personal and private information about my life, was sitting next to me on a park bench, and I had fallen asleep, you think it is okay to take that and make a copy of it? How can you advocate such a violation of privacy rights? Again, this smacks of socialism and Big Brother at its worst.

I have no idea how to respond to your position further. You are advocating a position that is not only contrary to law, but contrary to common sense. And you wonder why it is acceptable to defend my property and privacy rights with force? Incidentally, do you think I would have resisted the taking of my copy with force had I been awake? Would you have resisted with force or would you have said, "Yeah, sure. Violate my right to privacy. I do not care"?

"So, if my journal, with personal and private information about my life, was sitting next to me on a park bench, and I had fallen asleep, you think it is okay to take that and make a copy of it? How can you advocate such a violation of privacy rights?"

Beats me... I haven't advocated it. You made that position up and falsely attributed it to me.

No, it is not "okay" to take another person's property. It's a violation of their property rights. But in the situation you described, the violation is so minor and temporary that it's hardly worth getting worked up about.

I see little difference between your scenario and, say, a scenario where I fall asleep on the bus with a newspaper beside me, and someone borrows my newspaper while I'm asleep. I lose access to the news for a few minutes, and I'm deprived of my property for a few minutes, but really, who cares? I'm asleep anyway, and soon the paper is right back where I left it. Although a crime has taken place, it would be pointless to report it (since I will have been made whole by the time anyone responds), and it'd be nothing short of insane to kill someone over it.

Finally, as for privacy rights: we haven't been talking about privacy, we've been talking about copyright.

I think restricting speech in order to preserve privacy is far more justified than restricting it in order to make a buck. But we must distinguish between information that actually is private -- which someone doesn't want getting out into the public sphere at all, because it would result in harm, fraud, persecution, discrimination, etc. -- and information that someone might pretend is private because they're selling copies of it and don't want any competition.

Your personal journal might well be private, but a manuscript you're carrying to your publisher obviously isn't. As a general guideline, if you'd be happy for your work to be read by a million strangers as long as they paid you, it ain't private.

"You are advocating a position that is ... contrary to law"

Most people call that "advocating a change in the law". And as I pointed out above, we're both doing it.

"Incidentally, do you think I would have resisted the taking of my copy with force had I been awake?"

That's irrelevant, because you weren't awake. My point is that the lack of force makes the violation less offensive. Trespassing by walking through an open gate is not as bad as breaking down a locked door (even if the gate would've been locked if the owner were home). Taking a newspaper from the seat next to a man while he sleeps is not as bad as ripping it out of his hands or robbing him at gunpoint. And, of course, "borrowing" something for a few minutes is not as bad as keeping it forever.

"So, if my journal, with personal and private information about my life, was sitting next to me on a park bench, and I had fallen asleep, you think it is okay to take that and make a copy of it? How can you advocate such a violation of privacy rights?" Beats me... I haven't advocated it. You made that position up and falsely attributed it to me.

No, it is not "okay" to take another person's property. It's a violation of their property rights. But in the situation you described, the violation is so minor and temporary that it's hardly worth getting worked up about.

I see little difference between your scenario and, say, a scenario where I fall asleep on the bus with a newspaper beside me, and someone borrows my newspaper while I'm asleep. I lose access to the news for a few minutes, and I'm deprived of my property for a few minutes, but really, who cares? I'm asleep anyway, and soon the paper is right back where I left it. Although a crime has taken place, it would be pointless to report it (since I will have been made whole by the time anyone responds), and it'd be nothing short of insane to kill someone over it.

Finally, as for privacy rights: we haven't been talking about privacy, we've been talking about copyright.

Remember that I said the manuscript was in an envelope. Given the size of a typical book manuscript, the envelope would be quite large, or it could have been a small box. Regardless, the person picking up the envelope would not have known what was in it prior to picking it up. How could we not be talking about privacy? It could have been sheets of gold. It could have been diamonds. The criminal did not know. Privacy issue. There is no minor inconvenience here. This criminal invaded my private property unasked, which I consider a potential threat to me. Do you not see why I react with force? Private property is one of the few rights in our society that our laws still protect fairly zealously. If you are going to permit a random person to dig through my things, what if it had been a government employee? We are on the verge of throwing away yet another Constitutional right. Here I thought people on this site were for protecting Constitutional rights. Guess not.

I think restricting speech in order to preserve privacy is far more justified than restricting it in order to make a buck. But we must distinguish between information that actually is private -- which someone doesn't want getting out into the public sphere at all, because it would result in harm, fraud, persecution, discrimination, etc. -- and information that someone might pretend is private because they're selling copies of it and don't want any competition.

Your personal journal might well be private, but a manuscript you're carrying to your publisher obviously isn't. As a general guideline, if you'd be happy for your work to be read by a million strangers as long as they paid you, it ain't private.

Who said I was carrying it to my publisher? Maybe I was carrying it with me because I thought it was safer with me than in my home. Again, anyone digging through my things would not know before opening the envelope what was in it. It is a little late to sort out whether it is a crime after the fact because my privacy has already been violated.

You are advocating a position that is ... contrary to law.

Most people call that "advocating a change in the law". And as I pointed out above, we're both doing it.

No, I am advocating that privacy laws be maintained.

Incidentally, do you think I would have resisted the taking of my copy with force had I been awake?

That's irrelevant, because you weren't awake. My point is that the lack of force makes the violation less offensive. Trespassing by walking through an open gate is not as bad as breaking down a locked door (even if the gate would've been locked if the owner were home). Taking a newspaper from the seat next to a man while he sleeps is not as bad as ripping it out of his hands or robbing him at gunpoint. And, of course, "borrowing" something for a few minutes is not as bad as keeping it forever.

lol...So, if I have NO TRESPASSING signs around my property at regular intervals, and no fence, and a person passes right by one of the signs and enters my property, it is not okay to shoot the person? In some states, if you property is property marked and a person enters your property it is legal to use lethal force against that person. So, does it matter whether the gate was open or not?

What would have happened had the person been in the act of taking the envelope and I woke up? What if we had been in Texas where (last time I checked - but the laws may have changed) carrying a gun in the open is legal? It appears that the person is stealing my envelope carrying what I have valued at greater than whatever the felony limits in Texas are and I shoot the person, accidentally killing the person. I guess maybe that person should have minded their own business instead of opening an envelope that did not belong to them.

All your discussion is about is degrees of violation. Is a little violation okay but a big violation not? Question: How do I know whether the little violation is part of a big violation or whether the violation is a big violation that I am only seeing a small part of? I do not. All I know is that a felony is in progress and I have the capability of stopping it.

"Regardless, the person picking up the envelope would not have known what was in it prior to picking it up. How could we not be talking about privacy?"

Taking the envelope, in my view, is simply theft. When a car thief steals your car, he doesn't know what's in your trunk; when a burglar steals your TV, he doesn't know what you might have hidden inside the case. But we already have a term for those acts.

I thought you were talking about privacy with regard to spreading the information contained in the manuscript. That is where I consider privacy rights to come in: when someone starts disclosing information that poses a risk if it becomes known. "Privacy", to me, means something more than "mystery", and violating privacy is about more than just learning something you didn't already know.

"This criminal invaded my private property unasked, which I consider a potential threat to me. Do you not see why I react with force?"

No, it makes even less sense than before. You know the information in the envelope isn't private, so you know there's no real threat!

"It is a little late to sort out whether it is a crime after the fact because my privacy has already been violated."

Well, the mystery of what's in your envelope has been violated, but if it's just your manuscript in there, then your privacy is safe. No harm will come to you if people learn the plot of the story you've written -- in fact, as an author, that's what you want to happen, even if you wish it would happen a little later and you wish you'd get rich in the process.

"No, I am advocating that privacy laws be maintained."

You're also advocating for the right to use deadly force against anyone who touches your envelope without permission. Or perhaps you're saying you're willing to commit murder whether or not it's illegal, but I'll give you the benefit of the doubt. Either way, the killing you advocate is illegal today in most, if not all, of the US and the greater civilized world. (It's probably fine in Somalia, though. I hear that's the place to go if you want the government off your back!)

"It appears that the person is stealing my envelope carrying what I have valued at greater than whatever the felony limits in Texas are and I shoot the person, accidentally killing the person."

Ha! Yeah, who hasn't been there? Just the other day I was innocently aiming a loaded gun at someone and pulling the trigger, nothing too serious, but before I knew it, I had "accidentally" killed them! How embarrassing! Oh well, accidents happen, right?

"What would have happened had the person been in the act of taking the envelope and I woke up?"

I imagine you would've grabbed it back from him. If things escalated from there, then I imagine it might have reached a point where you'd be justified in the use of lethal force... but with no escalation of force, that point is never reached.

"All your discussion is about is degrees of violation. Is a little violation okay but a big violation not?"

I've already answered this question: see the beginning of my last post.

But I'm getting the impression that you have trouble accepting that the real world isn't black and white - that there's no one-size-fits-all response to all acts that are "not okay". Do you really see no distinction between, say, jaywalking and murder? Slapping someone on the wrist and pushing them down a flight of stairs? Stealing an apple to feed your kids and stealing a billion-dollar pension fund to buy a fleet of yachts? Borrowing someone's newspaper while they're asleep and taking their wallet at gunpoint?

"Regardless, the person picking up the envelope would not have known what was in it prior to picking it up. How could we not be talking about privacy?"

Taking the envelope, in my view, is simply theft. When a car thief steals your car, he doesn't know what's in your trunk; when a burglar steals your TV, he doesn't know what you might have hidden inside the case. But we already have a term for those acts.

I thought you were talking about privacy with regard to spreading the information contained in the manuscript. That is where I consider privacy rights to come in: when someone starts disclosing information that poses a risk if it becomes known. "Privacy", to me, means something more than "mystery", and violating privacy is about more than just learning something you didn't already know.

Jesse, it should not matter what is in the envelope, whether it tells about you wetting the bed until you were 10-years-old or that you know that your happily married next door neighbor is actually gay or that it is a laundry list or a manuscript (though by definition anything you write is essentially a manuscript). The point is, you intended on keeping the information to yourself for whatever reason and no one had the right to violate that privacy. Indeed, the right to privacy is enshrined in the Constitution of the United Stated of America.

"This criminal invaded my private property unasked, which I consider a potential threat to me. Do you not see why I react with force?"

No, it makes even less sense than before. You know the information in the envelope isn't private, so you know there's no real threat!

How did you come to the conclusion that the information in the envelope is private? It is only known to the author, regardless of what that information is, so by definition it is private. Any violation of the Constitutional right to privacy is by definition a real threat.

It is a little late to sort out whether it is a crime after the fact because my privacy has already been violated.

Well, the mystery of what's in your envelope has been violated, but if it's just your manuscript in there, then your privacy is safe. No harm will come to you if people learn the plot of the story you've written -- in fact, as an author, that's what you want to happen, even if you wish it would happen a little later and you wish you'd get rich in the process.

What if it is my diary? Again, you are distinguishing what can only be known after privacy has been violated. I may have a list of every woman to whom I have made love, and I most assuredly would not want that information known. Regardless of what is in the envelope, it should be only mine to know until I wish to make it known to someone else.

No, I am advocating that privacy laws be maintained.

You're also advocating for the right to use deadly force against anyone who touches your envelope without permission. Or perhaps you're saying you're willing to commit murder whether or not it's illegal, but I'll give you the benefit of the doubt. Either way, the killing you advocate is illegal today in most, if not all, of the US and the greater civilized world. (It's probably fine in Somalia, though. I hear that's the place to go if you want the government off your back!)

Ummm...I do not think so. I wake up, demand the thief return my manuscript and the copy he illegally made to me, and when he attempts to take the manuscript using force (because trust me, it will take force to get the manuscript or the copy away from me) then I will have justification to defend myself from a forcible felony. That is legal is every state in the union, and in most of the world.

It appears that the person is stealing my envelope carrying what I have valued at greater than whatever the felony limits in Texas are and I shoot the person, accidentally killing the person.

Ha! Yeah, who hasn't been there? Just the other day I was innocently aiming a loaded gun at someone and pulling the trigger, nothing too serious, but before I knew it, I had "accidentally" killed them! How embarrassing! Oh well, accidents happen, right?

Did you prevent a forcible felony? If so, congratulations!

What would have happened had the person been in the act of taking the envelope and I woke up?

I imagine you would've grabbed it back from him. If things escalated from there, then I imagine it might have reached a point where you'd be justified in the use of lethal force... but with no escalation of force, that point is never reached.

Trust me, the thief would not have made off with the manuscript had I been awake.

"All your discussion is about is degrees of violation. Is a little violation okay but a big violation not?"

I've already answered this question: see the beginning of my last post.

But I'm getting the impression that you have trouble accepting that the real world isn't black and white - that there's no one-size-fits-all response to all acts that are "not okay". Do you really see no distinction between, say, jaywalking and murder? Slapping someone on the wrist and pushing them down a flight of stairs? Stealing an apple to feed your kids and stealing a billion-dollar pension fund to buy a fleet of yachts? Borrowing someone's newspaper while they're asleep and taking their wallet at gunpoint?

Of course. If someone steals a painting done by my six-year-old child, that is worth little more than a stern talking to about right and wrong. If someone steals the Mona Lisa, or worse, deliberately destroys the Mona Lisa, or the original copy of the Constitution of the United States, I hope the jerk rots in prison forever and a day.

If you peek in my window, I will may warn you that peeking is not nice. If you are peeking in my teenage daughter's window, I will be calling the cops. If you entered my home illegal and are peeking at my teenage daughter through her bedroom door, hope my shot only wounds you - and if I did kill you it would be considered justifiable homicide in most states in the union (though not all).

"How did you come to the conclusion that the information in the envelope is private? It is only known to the author, regardless of what that information is, so by definition it is private. Any violation of the Constitutional right to privacy is by definition a real threat."

First, I don't believe this is a useful definition of privacy: as I said before, I think we must distinguish between information that shouldn't get out, because spreading it would result in harm, and information that simply hasn't gotten out. Privacy != mystery.

Second, the Constitution protects you from the government, not from fellow civilians. Good luck suing some random guy off the street for a Fourth Amendment violation.

"I wake up, demand the thief return my manuscript and the copy he illegally made to me, and when he attempts to take the manuscript using force (because trust me, it will take force to get the manuscript or the copy away from me) then I will have justification to defend myself from a forcible felony."

Yes, that's a fine hypothetical, but it's not the situation you described before. What you described before is murder; what you're describing now is self-defense.

Also, the copy the thief made isn't yours to demand back (presuming that he used his own ink and paper).

"Did you prevent a forcible felony? If so, congratulations!"

It's funny how you're now acting as if "preventing a forcible felony" is what you've been advocating all along. Unfortunately, your older posts don't disappear just because you decide you should've written something else.

"Of course. If someone steals a painting done by my six-year-old child, that is worth little more than a stern talking to about right and wrong. If someone steals the Mona Lisa, or worse, deliberately destroys the Mona Lisa, or the original copy of the Constitution of the United States, I hope the jerk rots in prison forever and a day."

Very good. I trust you can answer your own questions about whether minor violations are "okay" from now on.

Jesse:

The United States was the first country to identify the right to privacy, and the right to privacy have been more or less based on the U.S. right to privacy.

The origination of the right to privacy was from an article by Louis Brandeis (who later became a Supreme Court justice) and Samual Warren titled "The Right to Privacy." Their article argued that the Constitution of the United States and common law entitled Americans a general right to privacy. It is based on this article that I believe the Constitution embodies a right to privacy not only from the government, but from other people.

Later, Dean Prosser, a highly influential tort expert, identified four privacy related torts:

1. Taking one's identity for yourself (generally called identity theft today). 2. Lying about someone in public (I believe this is the essence of libel and slander). 3. Publicly disclosing private facts about someone (which I believe is the basis for the privacy act, which provides additional, formal legal protection for any private information about an individual, regardless of whether it was collected by a private entity or individual or by the government). 4. Unreasonably interfering with the right of people to be left alone (which I believe is the basis for ant-stalking laws).

I believe there is solid basis for felony charges against an individual picking up an envelope that is clearly in my possession and opening it under items 3 and 4 above. Note that many anti-stalking laws include justification for lethal defense against a stalker.

So, in answer regarding suing someone with respect to the fourth amendment, I would not bother. Instead I would sue them under the general torts relating to privacy that derive from contitutional protection.

Regarding the copy he made...since it is clear that it was the only copy in the entire world, I need not use copyright law at all. Instead, I use elements 3 and 4 above with respect to privacy tort, and I throw in copyright law as an added kicker. Then, if I can get the person to say that we was going to duplicate the work in a way that people inferred it was his, I will get him for several other laws.

As for your final comment regarding major and minor, the problem I still have is the one that existed all along. What if the envelope had been booby-trapped and exploded on opening? What is the envelope was all my medical records? Until the moron opens the envelope, we do not know the magnitude of the violation, but then it is too late. Under privacy laws, of which there are many, the fool broke the law the moment he opened the envelope, regardless of what was inside, and you fail to seem to recognize this fact.

"I believe there is solid basis for felony charges against an individual picking up an envelope that is clearly in my possession and opening it under items 3 and 4 above. Note that many anti-stalking laws include justification for lethal defense against a stalker."

I believe there isn't, and I doubt you'll be able to cite any law that would make that act a felony (presuming the envelope is not a piece of US mail). The envelope might not actually contain "private facts" about you, and "unreasonably interfering with the right of people to be left alone" in this case is better described as "stealing": you don't see every other thief being charged with privacy violations, do you?

I also believe you'd be laughed right out of court and into a prison cell if you tried to use the anti-stalking defense after murdering someone who touched your envelope. People know the difference between stalking and common theft; there's almost no similarity between them, actually.

"Then, if I can get the person to say that we was going to duplicate the work in a way that people inferred it was his, I will get him for several other laws."

Well, we both agree that fraud should be prosecuted. But fraud was not part of your original scenario.

"As for your final comment regarding major and minor, the problem I still have is the one that existed all along. What if the envelope had been booby-trapped and exploded on opening? What is the envelope was all my medical records? Until the moron opens the envelope, we do not know the magnitude of the violation, but then it is too late."

No, it's not too late. Of course we don't know the magnitude of the violation until he opens the envelope -- because there is no violation until he opens it! You can't charge him with a crime before any crime has been committed.

He doesn't know what's in there, so he's taking a risk: maybe his act is merely theft (if the info in the envelope is not private), maybe it's a privacy violation (if it contains your medical records), maybe it's something much worse (if it contains a bomb). That's the risk he takes by messing with someone else's property.

You, on the other hand, do know what's in there, so you can hardly claim you're reacting to a potential privacy threat if the envelope actually contains a story that you wrote for public consumption.

Likewise, if you punch someone in the face, you're taking a risk. Maybe the act is merely battery; or maybe your victim will become disoriented, fall off a railing, and die, and the act will be manslaughter or worse. Even if you don't foresee exactly what will happen, you're still responsible for the consequences (look up the "eggshell skull rule").

"Under privacy laws, of which there are many, the fool broke the law the moment he opened the envelope, regardless of what was inside, and you fail to seem to recognize this fact."

Privacy laws are irrelevant there: under plain old theft laws, he broke the law when he took the envelope. What you apparently fail to recognize is that we don't need to invoke (or write) any additional laws, based on the dubious principle of covering up every harmless fact a person wishes to keep secret, in order to charge a thief with a crime.


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Intellectual Property Fosters Corporate Concentration Yeah, I see the discouragement of working on a patented device all the time. Great examples

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Les patent trolls ne sont pas toujours des officines

Les patent trolls ne sont pas toujours des officines

Patent Lawyers Who Don't Toe the Line Should Be Punished! Moreover "the single most destructive force to innovation is patents". We'd like to unite with you

Bonfire of the Missalettes!

Does the decline in total factor productivity explain the drop in innovation? So, if our patent system was "broken," TFP of durable goods should have dropped. Conversely, since

Does the decline in total factor productivity explain the drop in innovation? I wondered about TFP, because I had heard that TFP was increasing. Apparently, it depends on who

Music without copyright I do agree with all the ideas you have presented in your post. They are very convincing and will

Music without copyright It's strange, that sometimes the most simple suggestions are often the most useful! I will take the

Patents on 3D Printing Challenged by Prior Art To Loup Vaillant: "So, you think we wouldn't have had those 9 technologies without patents? I can

Patents on 3D Printing Challenged by Prior Art @anonymous: So, you think we wouldn't have had those 9 technologies without patents? I can accept

Patents on 3D Printing Challenged by Prior Art The fact is that in the last 20-25 years the technologies of rapid prototyping (today known as

Public Knowledge announces a Patent Reform Project No patents should be allowed on ANY software. And no patents on Business Methods. If the have to

Patents on 3D Printing Challenged by Prior Art The fact is that in the last 20-25 years the technologies of rapid prototyping (today known as

Music without copyright Overall an end user friendly site, several great points! It is a well crafted article, I'm going

How the Most Successful Patent Troll Does It It appears that the "troll" phenomenon is concentrated on software, which is to be expected since

Patents on 3D Printing Challenged by Prior Art Steve: Something that is nearly 30 years old is "novel"? How do you figure

Another Big Patent Troll Assessed I suspect that Carl Shapiro deserves some credit in this. While not as skeptical about patents as I