The idea that ideas can be property is patently ridiculous

May 18, 2017 § 54 Comments

One of the interesting things about patents (unless the law has changed since I filed mine a couple decades ago) is that the invention must be “reduced to practice” before you can even apply for one: you have to have a concrete working implementation before the patent office will even accept your application. And once a patent is granted, what the patent holder actually receives – the patent itself – is a security entitling the holder of the patent to enforceable commercial exclusivity within the jurisdiction of the patent authority.

Similar things can be said about other forms of intellectual property.

So IP doesn’t count in favor of the contention that ideas can be property. It counts against that contention.

As usual liberal modernity requires you to studiously avert your gaze once actual reality starts to come into view.

§ 54 Responses to The idea that ideas can be property is patently ridiculous

  • “And once a patent is granted, what the patent holder actually receives – the patent itself – is a security entitling the holder of the patent to enforceable commercial exclusivity within the jurisdiction of the patent authority.”

    Interesting. That is a concept I apply to faith, to God, we are His intellectual property. We are real enough, as is all of creation. God has, “enforceable commercial exclusivity,” so to speak. So things, ideas, that convert people into commodities are a violation of God’s intellectual property rights. Abortion,usury, slavery, porn, whatever schemes we come up with that violate the patent that says we are made in the image of God.

    It can be a tricky concept in the modern world, because we are really resistant to the idea of people as property, but in the ancient world it was known you were going to be someone’s property,and that meant being under their authority and protection, provision, who you belonged to. Ideas are not property and people are not ideas either.

  • TomD says:

    What’s even more amusing is when you consider things like bitcoin et al; your “property” there is a number (a large number, but a number nonetheless), which perhaps can be said to be unownable.

  • Step2 says:

    Zippy,
    When you obtain the patent on ridiculous let me know so I won’t be paradoxically stealing from you. Oddly, if I lived in a different country I wouldn’t be stealing your exclusive property.

    In your telling a figment of nothing that has been reduced to practice (a strange transformation to be sure) plus a sovereign controlled marketplace produces a commercial exclusivity for a real property. Question: How does a sovereign give exclusive rights to the practice of nothing?

  • Zippy says:

    Step2:

    In your telling a figment of nothing that has been reduced to practice (a strange transformation to be sure) plus a sovereign controlled marketplace produces a commercial exclusivity for a real property. Question: How does a sovereign give exclusive rights to the practice of nothing?

    You seem to be having trouble distinguishing conceptually between “ideas are not the sort of thing which can be property” and “ideas are nothing”. There is a sense in which even nothing isn’t quite nothing, because if it were nothing in that sense we wouldn’t even be able to talk about it.

    If it helps, consider Donald Trump and Harry Potter; and further consider what a speaker who says “Donald Trump exists but Harry Potter doesn’t” actually means by that statement.

    Incapacity to grasp the difference between reality and fiction is central to the modern project. I appreciate your assistance in demonstrating as much to my readership.

  • Zippy says:

    TomD:

    What’s even more amusing is when you consider things like bitcoin et al; your “property” there is a number (a large number, but a number nonetheless), which perhaps can be said to be unownable.

    Bitcoin is an authenticated record of wasted computation, physically recorded in some form of computer memory.

    Computer memory (of all kinds: sequential-logic electronics/optics/magnetics in general) is like a book, but much easier to duplicate of course. Symbols of some sort are recorded on a physical substrate.

    It is ridiculously easy make digitally-perfect copies of those symbols to a different physical substrate. But different physical copies are still each real in themselves and physically distinct.

  • Step2 says:

    Zippy,
    The difference between the idea of (owning) a cow and an actual (owning of a) cow is not a matter of moving along some continuum of compromise with a possible happy medium. Being and non-being are absolutely distinct.

    The correct bit in parenthesis makes it absurd, right? There is never a process of acquiring, developing, or constructing a bit of property, it exists moment to moment as only an idea (non-being) or actual property (being).

    If it helps, consider Donald Trump and Harry Potter; and further consider what a speaker who says “Donald Trump exists but Harry Potter doesn’t” actually means by that statement.

    All they mean is that the Orange Menace isn’t a fictional person although he fits certain tropes for the horror and tragedy genre. They cannot mean Trump has greater emotional maturity than the fictional character. And again, by saying Harry Potter doesn’t exist the speaker is suggesting there is actually nothing rather than a fictional something.

    Incapacity to grasp the difference between reality and fiction is central to the modern project.

    I haven’t claimed there is no difference. What I have claimed is there are some ideas that when pursued can become actual property. You’ve indirectly ceded this claim, the main point of contention is that you think only the sovereign’s exclusive market access makes the “practice of the idea” real property while I think the original idea is property because it belongs to a person or group of persons and can be traded.

  • Zippy says:

    Step2:

    What I have claimed is there are some ideas that when pursued can become actual property.

    Then you are shadow boxing. Nobody has denied that a man can conceive of a table and then build an actual table, and that this actual table can be property.

    What has been denied is that the idea of a table can be property.

  • Purple Tortoise says:

    Zippy,

    Sort of off topic, but I wonder what you think about the increasing practice of selling a physical object (such as a phone or a tractor) with embedded software that is not sold but merely licensed so that the manufacturer can continue to control what the customer does with the object — for example, requiring the customer to return to the manufacturer for all repairs under the threat of “bricking” the object. I suppose one could view it as some sort of indefinite lease agreement in which the customer never truly owns the object but the seller never intends to receive the object back. But it seems that the rationale is that an idea (software) embedded in the object is property that the customer does not own.

  • Zippy says:

    Purple Tortoise:

    I posted a bit of a ramble on that subject here… and that’s about all I’ve got for now. At the very least it strikes me as pretty hinky to pretend that the “purchasers” of such products actually “own” what they have “purchased”.

  • Purple Tortoise says:

    Thanks, Zippy.

    Here’s an illustration that came to my mind. Let’s say you buy some purely hardware device. As owner, you can use it, or you can resell it, or you can even beat it to pieces with a sledgehammer, but in this current day of digital rights management what you cannot do is take it apart in order to figure out how it works. In the past, there was no prohibition against figuring out how a device worked, only against using that knowledge to make more and sell them if the device was still under patent. But now we seem to be moving toward a regime where knowledge of how the device works is regarded as property, and to gain that knowledge through investigation of a device you purchased is stealing and punishable by the magistrate. As you say, it seems pretty hinky, but I’m trying to develop a better foundation for why that notion is true or false.

  • Zippy says:

    Purple Tortoise:

    If the sovereign is thought of as owner of marketplaces, then his legitimate power when it comes to IP is in regulating transactions but not in preventing teardowns, modifications, making DIY versions, etc for personal use. If the sovereign is thought of as just owning everything and everyone than this limit wouldn’t apply.

    So the basic question becomes: is IP a securitization of the sovereign’s ownership of marketplaces, or is it a securitization of the sovereign’s ownership of everything, including us?

    I think any reality-grounded understanding of sovereignty will be a fractal of the family: it starts with thinking of subjects as the king’s children, if you will. I don’t have an overarching theory, but a father doesn’t “own” his children in the sense of them being merely resources.

  • Mike T says:

    Most of those modern expansions of IP law are justified as a sort of preemptive assault on people who might violate the rights granted by the security. I think we have a demonstration here that is hinting at an implied limiting factor on authority: the violation, potential or real, cannot justify the authority wielding power that is either the proper domain of another authority or outside of what his own scope permits in the name of the common good.

    I don’t have a complete theory of how to describe/limit it, but as I see the issue here, the biggest problem is that the sovereign is engaging in a highly consequentialist view of his own authority that takes the view “it is better to damn a thousand men to get a handful of guilty men” than the other way.

  • Purple Tortoise says:

    I’m fine with the sovereign regulating marketplaces — after all, patents and copyrights originally did not go to primary creators but instead were merely monopolies granted by the king.

    And I think Mike T is correct that much of digital rights management was originally directed towards retarding the ability to make and distribute copies, though licensing now seems to be morphing into an attempt to create a permanent revenue stream from customers. That is, instead of a customer making a one-time tangible transaction of exchanging money for information (as represented by software), the vendor wants the customer to pay a recurring fee for the temporary licensing of intangible “intellectual property”.

    I am a confessional Protestant, and one idea that has developed in my circles is that different areas are governed by different legitimate and overlapping authorities (though not absolute), all under God. So the sovereign can compel a man to military service, but he can’t compel the man’s wife to sexual service. The church can excommunicate the unrepentant sinner, but cannot administer criminal punishment. Parents have authority to direct the upbringing of their children, but the state may intervene in cases of severe abuse and neglect. Yet I have not seen so far how this is worked out in the context of IP and personal use of property, which seems to be a new development in history.

  • Zippy says:

    Purple Tortoise:

    We papists would probably refer to the natural distribution of authority as “subsidiarity,” but it sounds like pretty much the same thing.

    Complex software is brand new from a historical perspective, so the turf battles over how it intersects with property will likely go on for a long time. Using software to force permaleases on people who would rather buy and actually own products is part of that larger turf war.

    I have a pretty strong intuition that this particular sort of rent seeking is morally wrong, but I don’t have a set of well developed arguments. (And often enough the process of developing arguments will alter my perspective).

  • Mike T says:

    The IP hawks pretend that if we allowed customers to actually own their goods it would imperil the whole system based on artificial scarcity. However, I think the real issue here is that we don’t have effective IP laws to actually go after the real violations.

    A common argument is that forcing open the drivers to hardware would reveal a lot of trade secrets, but it stands to reason that a better balancing act would be to legally distinguish between an open source developer making an open source driver available and a competitor utilizing novel innovations derived from that code to skimp on R&D. From a public purpose perspective, they are completely different. One is expanding the ability of users to use a product that is sanctioned for sale in the sovereign’s marketplace, the other is trying to undermine the sovereign’s authority to securitize novel innovations.

  • Mike T says:

    One of the goals of the DMCA was to force additional consumption for the benefit of the IP holders. You see that at play with the anti-circumvention clause. The No Electronic Theft Act already criminalizes the act of copying goods you have no title to copy. However, the DMCA criminalizes the act of simply backing up a DVD you own or using a tool like Handbrake to turn it into a MP4 that can go on a tablet. The idea is that sure, you did buy that Blu-Ray disc for $20, but that doesn’t entitle you to actually watch it on the device of your choosing.

    My sense is that this is an immoral use of sovereign authority. Coercing people to consume goods that they don’t need, particularly in a case like this where what they just bought is already good enough and able to serve that need, really just is a use of authority to enrich moneyed interests at the expense of the public. I’m not sure you can really defend that use of authority in any relation to an objective common good.

  • Zippy says:

    We had a bit of a knock-down drag out here and at some other blogs probably ten years ago on a similar subject. Some company – “Clean Flicks” IIRC – had made software that could play back movies in a censored form. You still had to buy the original movie, but this product would censor out objectionable parts automatically. Think a “DVD filtering” analog to net filtering.

    The movie rights holders sued and won, putting Clean Flicks out of business.

    Now, I really think that the sovereign should not side with the Hollywood types on this. But I believe it was Step2 who pointed out that this was what the law required, and compliance doesn’t demand that we do evil.

    So both are true: the sovereign really shouldn’t have done that but, given that he has, we should comply. There is a lot of daylight between “the sovereign shouldn’t do X” and “we are justified in noncompliance if the sovereign does X.”

  • Mike T says:

    There is a lot of daylight between “the sovereign shouldn’t do X” and “we are justified in noncompliance if the sovereign does X.

    Non-compliance is a tricky thing. Let’s say that the sovereign declared it illegal to update your cell phone’s software, and it is clear that the sovereign does not care about his subjects getting harmed by malware and other factors. The sovereign shouldn’t do that, and I don’t think most people would be wrong to disobey that order because it would be similar to the sovereign ordering them to not lock their front door at night. Sorry, but king or not, you don’t have a moral right to tell me I must make it substantially easier to be prey to criminals, particularly when you formally disavow any particular duty to protect me and my property**.

    Obviously, armed resistance is not acceptable here, nor is an attitude that the sovereign’s authority is compromised by this one act. However, I don’t think the sovereign could actually expect people to obey a very imprudent order that subjects them to harm “just because.”

    **The Supreme Court has ruled that no one has a right to police protection. That means in jurisdictions like NYC the Supreme Court has effectively told the people that they must obey the state, but the state has no particular duty to accept responsibility for the self-provided security it has outlawed under pain of imprisonment. It is like declawing a cat and throwing it outside into the woods and claiming you had no part in it starving to death or being unable to fight back.

  • Mike T says:

    In the case you described, I don’t think non-compliance is possible without turning the conflict hot. So there, prudence would err on the side of compliance for the sake of the public peace. It’s not worth a shooting war over clean DVDs. However, I don’t think the sovereign could actually expect the customers to just destroy the software and stop using their copies.

  • Purple Tortoise says:

    Zippy:

    I wouldn’t be surprised if what I articulated was pretty close to subsidiarity since it likely has a common source. I’ve only read a tiny fraction of the Zippy corpus on liberalism, but however the Reformed confessions of the 16th and 17th centuries differed from Trent (which I do not minimize at all), I doubt that they could be characterized as “liberal”.

  • Zippy says:

    Mike T:

    Non-compliance is a tricky thing.

    Compliance/noncompliance can be both ambiguous and tricky, especially in its emanations and penumbras. But often enough the law is pretty clear. If the sovereign outlaws the sale of a product that you already own (e.g. the Clean Flicks software) but hasn’t said that owners have to turn in or destroy the product, there isn’t any reason to turn it in and destroy it. It also doesn’t mean that you can’t create your own software to do the job and even open source that software, or make edited copies of the movies yourself for personal use. Traditionally IP restrictions have been restrictions on the sale of market-exclusive products, not on mere possession. Forbidding possession is usually a criminal matter (e.g. some drugs, some weapons, etc) not a matter of violating IP-granted market exclusivity.

    There is of course a turf war over this, and it will be a very bad thing indeed if IP (as opposed to criminal law) becomes a kind of warrant/security capable of ex post facto forbidding mere retention of property legally acquired and reasonable use thereof.

    There are often ways around the letter of the law when the sovereign does something stupid or immoral, and this provides one of the natural feedback mechanisms in the regulation of authority. In effect, the fact that positivism is false is a natural authority-regulator.

    However, disobeying a direct and definite instruction from a superior, when that command does not require you yourself to do evil, is a different matter. Positivism is false, but that doesn’t mean that no definite conclusions are possible. Postmodernism is just the mirror image of positivism, not its epistemic rival.

  • Step2 says:

    Zippy,
    FWIW I found the Clean Flicks post..

  • Zippy says:

    Step2:

    Good times.

  • Purple Tortoise says:

    Zippy:

    Somewhat off-topic, but have you written on how Christians can fulfill their obligation to follow positive law in our profoundly antinomian society? The ancient Medes and Persians, noble pagans that they were, held such a high view of law that not even the king could revoke it. So it was a simple matter to understand the law and whether to obey it or obey God. But in our present day we have millions of laws, many of which are apparently not intended to be enforced, unless the powers that be see a need to hammer down on someone. It is reported that the average American commits three felonies a day due to ignorance of the law or ambiguities in the law, and many policies and laws are ignored at all levels because to strictly follow them all would bring society grinding to a halt. Lawmakers seem to pass many laws as political grandstanding and give little thought to clarity and practicality. So how can the Christian navigate this treacherous terrain?

    On a related note, the mid-17th century catechism of my church provides an extended application of the 5th Commandment (I think the 4th Commandment to you papists). Reading through the duties of superiors and inferiors is like viewing Bizzaroland because the world envisaged by the catechism is completely different from the world we live in. One key presupposition of the catechism seems to be that authority is personally exercised, whereas in our society authority is diffused away through law and bureaucracy such that no one is really in charge and no one is really responsible.

  • Zippy says:

    Purple Tortoise:

    So how can the Christian navigate this treacherous terrain?

    I have no special insight other than to note (as basically a true-by-definition platitude) that the virtuous will do so differently from the vicious. The mild personal implication here is to focus primarily on the morality of our own acts, and to avoid distractions from that first and most crucial of considerations; which is all anyone can really do anyway.

    One key presupposition of the catechism seems to be that authority is personally exercised, whereas in our society authority is diffused away through law and bureaucracy such that no one is really in charge and no one is really responsible.

    Yes, by turning authority over to inhuman procedures we still get authority, discrimination, restriction on freedom, etc; but we get in an unaccountable, sociopathic form.

    The main differences between liberal regimes and authoritarian[*] regimes are that the former exercise authority sociopathically while pretending not to, and last indefinitely; whereas the rule of particular men comes with the manifest responsibility of those particular men for their choices, and is naturally limited by their life spans.

    [*] In the real sense of rule by particular identified men with personal authority, not in the sense of regimes which supposedly inauthentically profess liberal principles “but” don’t do what the differently liberal critic thinks they ought to do if only their liberal commitments were ‘authentic’.

  • Purple Tortoise says:

    Zippy:

    According to the catechism, one duty of superiors is to care for the spiritual and moral welfare of their inferiors, but you can imagine how quickly that would be stopped in our society if anyone tried to do that outside of an explicitly religious organization with a purely religious mission. In thinking about how I could possibly fulfill my duties in this area, I came to the conclusion that I wasn’t really a superior but merely a higher-ranking slave. This seems odd to modern ears since we’re repeatedly told how free we are, but I don’t see how it can be otherwise in the face of “anti-discrimination” laws.

    Acting morally is also not so simple when the senses are dulled by being a cog in a giant bureaucracy (as we all are to a lesser or greater extent). Since responsibility is diffused away, we can cooperate with immoral actions merely by following standard laws and policies. Here is where ignorance of history fails us. I’ve heard people in my church rationalize going along with the dictates of immoral policies on the grounds that Daniel was righteous even as a high-ranking official in the pagan Babylonian empire. They imagine that Daniel was a paper-pushing bureaucrat legally bound to follow the multitudinous regulations of the Babylonian policies and procedures manual and thereby inevitably cooperating with evil and idolatrous actions. What they don’t realize is that policies and procedures manuals are a very recent development and officials in prior times were given wide latitude to conduct themselves as they saw fit and that it would never be necessary for Daniel to participate in evil and idolatry while carrying out his duties as an overseer.

  • Zippy says:

    Purple Tortoise:

    What they don’t realize is that policies and procedures manuals are a very recent development and officials in prior times were given wide latitude to conduct themselves as they saw fit and that it would never be necessary for Daniel to participate in evil and idolatry while carrying out his duties as an overseer.

    Yes, modernity certainly has the appearance of being designed by Hell with diabolical intent.

    The ‘rule of law’ has come to mean positivistic adherence to bureaucratic procedures and formal rules, turning public officials into soulless rule-following machines and making it impossible for them to both “enforce the law” and avoid formal cooperation with evil.

    Mass democracy is designed to lure the great multitude of people into (completely unnecessary and utterly pointless) formal cooperation with remote evil. (Remote formal cooperation with evil is distinct from remote material cooperation with evil — the latter may be justifiable depending on intentions and circumstances, but the former is always morally wrong to choose).

    Modern workplaces are designed to box people into a PC corner where the stark tradeoff is between formal cooperation with evil and poverty. Usury provides a kind of way out, by embracing wage slavery and keeping to the lowest tiers of employment. (Apropos to your comment about being a high status slave).

    Modern investment and finance is riddled with usury. Most people cannot avoid being victims of usury; most people cannot avoid at least material cooperation with usury; and most people don’t even understand what usury is, the harm it does, etc.

    I could go on.

    But the singularity at the epicenter of it all is modernity’s attempt to harvest the goods of authority while simultaneously rejecting the existence of authority.

  • Mike T says:

    One of the realizations I came to a long time ago is that substantive due process as a formal procedure rather than a set of basic ethical guidelines that are mostly common sense has lead to a point where the judiciary is powerless to judge many of the important facts on trial. For instance, we have the spectacle now of a defendant being shown to be entirely a victim of corrupt police, prosecutors, etc. who are in flagrant violation of myriad statutes and the judge is powerless to judge them alongside the defendant. It’s ironic that the literal “jurisdiction” does not cover most of what is actually in the judge’s face on trial because good heavens, imagine what would happen if a judge could say “I sentence the defendant to six months for his crime, for the felony of planting evidence I sentence officer Johnson to five years and for perjury, malicious prosecution on charges 3-12 I sentence the prosecutor to 8 years in state prison.”

  • Zippy says:

    Mike T:

    … imagine what would happen if a judge could say “I sentence the defendant to six months for his crime, for the felony of planting evidence I sentence officer Johnson to five years and for perjury, malicious prosecution on charges 3-12 I sentence the prosecutor to 8 years in state prison.”

    This is prevented by procedural due process, not substantive, stipulating the distinction.

    One of the many layers of irony in the whole situation is classical liberal or conservative outrage at the “usurpation” of “legislative” authority by judges, as if the role of authoritatively deciding particular cases could be carried out without the judge exercising any actual authority.

    This is so typical of right liberalism or conservatism: to complain about some leftist dysfunction and then double down on the very error which gives rise to that dysfunction in the first place.

  • Mike T says:

    Conservatives will often shriek about the exclusionary rule, despite it being literally the only practical punishment our system allows judges to mete out to corruption in front of them. Over at W4, IIRC it was argued that it is unjust and should go and prosecutors should just do the right thing and prosecute bad cops and prosecutors. Setting aside the fact that this typical conservative response effectively merges the judiciary in a real sense into the executive, thus blowing away more than the pretense of separation of powers, it’s tautological. If prosecutors were doing what they were supposed to be doing, corrupt cops and prosecutors would already be getting charged and it would be a moot point.

    There is some sort of mental virus unique to conservatives that goes like this:

    1. I don’t like the way things are.
    2. Things are holding on by a thread.
    3. That thread sure is ugly.
    4. *Rips out the thread*
    5. *Cries when everything collapses*
    6. Wrings hands, “but at least I didn’t do evil that good may come of it.” (Nevermind the fact that the thread itself was just a poor judgment, not an objectively evil one)

  • Mike T says:

    Forgot:
    7. Admire the ruins by moonlight.
    8. Denounce as a progressive the man who wants to substantially alter the status quo to actually fix the progressives’ mistake.

    Yeah, I realize I’m pretty much plagerizing Chesterton at this point.

  • Zippy says:

    Mike T:

    Conservatives will often shriek about the exclusionary rule, despite it being literally the only practical punishment our system allows judges to mete out to corruption in front of them.

    It isn’t really a personal punishment of police and prosecutors to merely limit the evidence they are permitted to present. Termination of employment, the stocks, or jail would be punishment.

    But in any case modernity is riddled with situations in which we are required to ignore obviously pertinent facts: Sailer’s ‘war on noticing’, if you will.

    In the specific case of the exclusionary rule it isn’t obvious to me that the ‘conservatives’ you cite are wrong. Making a just ruling requires that the authority making the judgment have possession of all of the pertinent facts, and take all of those facts into consideration.

    So the exclusionary rule may well be intrinsically contrary to justice, that is, intrinsically immoral.

  • Zippy says:

    I explained in this old W4 post precisely why political equality (derivative from the primordial political liberty doctrine) leads to an ever-expanding list of facts which we are required to ignore no matter how pertinent they might be to a particular situation.

  • One of the many layers of irony in the whole situation is classical liberal or conservative outrage at the “usurpation” of “legislative” authority by judges

    I also find this ironic in light of the fact that the legislative branch delegated incredible amounts of legislative power to the executive branch in the form of bureaucracy; the whole “separation of powers” didn’t even actually work to curb the growing power of the executive. Congress literally voluntarily handed over legislative power to the executive, who has exercised that power by many orders of magnitudes more times than the judiciary has “legislated from the bench.”

    As for the exclusionary rule, I have a hard time seeing how it could be intrinsically immoral. We are supposed to prosecute beyond a reasonable doubt, and if there is reasonable doubt about the validity of the evidence collected then it should be excluded. It really depends on what is excluded and why; particular instances may be unjust, but I have a difficult time seeing how it is intrinsically unjust.

  • Zippy says:

    TimFinnegan:

    As for the exclusionary rule, I have a hard time seeing how it could be intrinsically immoral. We are supposed to prosecute beyond a reasonable doubt, and if there is reasonable doubt about the validity of the evidence collected then it should be excluded.

    Any “reasonable” standard requires the judgment to be made by reason, and excluding pertinent facts — including of course the epistemic circumstances of those facts, e.g., the doubtfulness of particular conclusions drawn from them — hampers the exercise of reason by the decision maker.

    Also, the exclusionary rule isn’t about excluding objectively doubtful evidence: it is about excluding evidence which was acquired in some way which violated the prescribed bureaucratic procedures.

    I think it is pretty easy to see how the exclusionary rule could be intrinsically contrary to justice and therefore intrinsically immoral. But the modern mind tends to think of ‘justice’ as meaning ‘follows bureaucratic procedures correctly’.

  • Zippy says:

    IOW “here are the facts and the circumstances in which they were gathered, to inform your judgment” is intrinsically different from “you must make a judgment while pretending that these pertinent known facts are not known and/or are not the case”.

  • donnie says:

    This discussion over the role of the judiciary has reminded me that everyone here ought to read Coulombe’s Star Spangled Crown when they get the chance. It’s a quick read, little over 200 pages or so, and in large part devoted to fleshing out how law and judicial power ought to be ordered in this country (and, in the context of the book, are ordered in the author’s fanciful, imaginative Royal America of the 22nd century).

    A good review of the book can be found here, and should give anybody a solid sense of whether or not they think it’s worth their time:
    http://www.socialmatter.net/2016/10/27/book-review-star-spangled-crown/

    Personally, I’m not confident that I understand the nature of law and judicial power quite well enough to decide to what extend I agree with the author’s proposals on the topic, but I certainly recommend the book as a fascinating thought experiment and a great conversation starter.

    Also, guys, one of these days we need to get a book of the month club going…

  • Mike T says:

    This article is a very good example of the modern bureaucratic mentality in action and how it generates resentment and rebellion. Imagine, for a moment, seeing your daughter coming home in tears, clothes shredded and telling you that an illegal immigrant had attempted to forcibly rape her. Then the police show up–to arrest her. Not for performing a Blood Eagle on him (it’s Denmark), but for pepper spraying him because pepper spray was outlawed as an illegal weapon. As we know, the rule of law will not survive if we allow private judgment that her use of an illegal weapon in that context is, shall we say, de minimis non curat praetor all things considered…

    The modern bureaucratic mentality seems to be the result of a society that has optimized for “how to best swallow camels while straining gnats.”

  • Zippy:

    Now I understand. It’s like a judicial zero-tolerance policy.

  • As owner, you can use it, or you can resell it, or you can even beat it to pieces with a sledgehammer, but in this current day of digital rights management what you cannot do is take it apart in order to figure out how it works. In the past, there was no prohibition against figuring out how a device worked, only against using that knowledge to make more and sell them if the device was still under patent. But now we seem to be moving toward a regime where knowledge of how the device works is regarded as property, and to gain that knowledge through investigation of a device you purchased is stealing and punishable by the magistrate.

    As far as I’m aware, courts have been pretty consistent* in holding that licenses are equivalent to sales, and that the first sale doctrine consequently applies. So if you could figure out how it works, that should be allowed legally, it’s just not technically possible.

    *See Microsoft Corp. v. DAK Industries, Inc. for an example.

    In the specific case of the exclusionary rule it isn’t obvious to me that the ‘conservatives’ you cite are wrong. Making a just ruling requires that the authority making the judgment have possession of all of the pertinent facts, and take all of those facts into consideration.

    So the exclusionary rule may well be intrinsically contrary to justice, that is, intrinsically immoral.

    The sovereign doesn’t have an obligation to prosecute every possible case (being that positive obligations never bind without exception), so I fail to see how a rule that individuals can’t be convicted based on illegally obtained evidence could be intrinsically immoral.

    Clean Flicks

    If I understand correctly, that case rested at least partially on a technicality. While the first sale doctrine grants buyers an unequivocal right to do what they want with physical copies of a work that they legally obtain, it doesn’t (because of judicial autism) grant them a right to copy the work and then destroy their original purchase. So if they could have found a way to alter the original DVDs there shouldn’t have been an issue.

  • Zippy says:

    There is a nontrivial difference between choosing not to prosecute some cases at all, on the one hand, and deliberately suppressing known pertinent facts in cases which are prosecuted on the other. So the former abstract possibility doesn’t constitute a counterexample against an argument that the latter is morally wrong. The fact that you aren’t obligated to marry someone doesn’t justify marrying them
    while deliberately hiding crucial truths about yourself. Choosing to make a deliberately mutilated judgment is different from passing on prosecution – for the time being – entirely.

    More generally, in order to call the argument into question any putative counterargument has to first actually address it.

  • Arguing that something is wrong is different from arguing that it’s an intrinsic evil.

    Your argument about making bad judgments is a non-issue, because the state only prejudices itself via the exclusionary rule. A defendant may still admit evidence that the police obtained illegally.

    Basically, if it can be stipulated that the prosecution isn’t obliged to introduce all possible incriminating evidence in a case, then the burden would be on you to establish that this particular exclusion is wrong.

  • Zippy says:

    ArkansasReactionary:

    state only prejudices itself via the exclusionary rule.

    Where “only itself” means the victims of crime and the common good.

  • Zippy says:

    ArkansasReactionary:

    Basically, if it can be stipulated that the prosecution isn’t obliged to introduce all possible incriminating evidence in a case…

    Then you’ve produced a nice strawman.

    The exclusionary rule requires the exclusion of ‘procedurally tainted’ evidence in all cases. If it is ever unjust to do this in any case, then the exclusionary rule is intrinsically unjust.

  • If it is ever unjust to do this in any case, then the exclusionary rule is intrinsically unjust.

    This is such a blatant non-sequitur I’m having trouble believing that you actually thought it was a good argument.

    Bekng intrinsically unjust means that something is always and everywhere wrong without exception. Being unjust in some case does not equate to intrinsic evil, by definition.

  • And you’ve still not established how and why it’s unjust. Simply positing the hypothetical possibility that it might in some cases constitute an injustice does nothing apart from some sort of argument that it actually does cause injustice.

  • Zippy says:

    A rule which necessarily produces unjust results is an intrinsically unjust rule. The fact that it may produce other results also doesn’t change this.

    Consider for example rolling the dice as a procedure for determining guilt or innocence. This procedure is intrinsically unjust even though it doesn’t always produce an unjust result.

  • Convicting someone on the basis of something with no connection to guilt or innocence (such as a dice roll) is an injustice regardless of the actual guilt of the subject. So the analogy does not hold.

    In any case that’s a semantic point. What argument do you have that the exclusionary rule actually does produce unjust results?

  • Zippy says:

    This line of discussion is well underway in its own post, where it is more on topic.

  • GJ says:

    Zippy:

    Modern workplaces are designed to box people into a PC corner where the stark tradeoff is between formal cooperation with evil and poverty.

    I think many men could still accept poverty per se as a result of not cooperating with evil, but the prospect of ‘muh children starving’ causes them to yield.

  • Mike T says:

    Zippy,

    I think JetBrains’ licensing model for IntelliJ might be the way to make a morally sound copyright licensing system. Their approach for IntelliJ goes like this:

    1. You buy a $200 support contract + license for your copy.
    2. You can use that license on any desktop you own or that your employer allows, but you cannot install it with the intent of sharing a license.
    3. Once your support contract expires, you are authorized to use the last build released while it was valid.

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