Friends don’t let their friends use Apple

There is a fascinating battle going on between Apple and Google. They were once very close – until a year or so ago Google had a couple of people on the Apple board. Now they are arm-wrestling for control of the next generation in consumer electronics.

The new battlefield, where most of the action is happening, is mobile – phones and tablets and whatever else they invent next. (I don’t think Stephen Conroy got the memo about that). Apple has built a walled garden. You can only use the  iOS operating system on an Apple product and you must buy apps for it through the iTunes store. The iTunes store won’t accept apps that compete with its own products.

Google’s mobile OS, Android, is open source. Anyone can put it on a mobile device without charge and modify it. The Google Apps Market will list just about anything.  Android has got the support of most phone manufacturers, other than Nokia and Blackberry. There are now many more phones being sold with Android than with iOS.

Apple has long believed in a walled garden. It is said that Steve Wozniak. who invented the Apple II and was the real technical brain behind Apple at the start, left after a dispute with Steve Jobs over that. When Jobs rejoined Apple in 1997 it had licensed its desktop OS to a few other companies. Jobs quickly bought back those licences.

Tim Wu’s book The Master Switch tells the story of information technology in the US, staring with the Bell system and the telephone. He traces what he calls “the cycle”. A technology starts out open – anyone can get into the business – and eventually one business or a small cartel gets control. This has happened with telephones, radio, TV and films, he says. Those in control fight to keep out competition – capture of regulatory agences often helps – and try to stop any disruptive technology that would change the game. I had not realized that FM radio was developed for RCA but RCA managed to stop it for nearly 20 years because of its near-monopoly in AM.

History never repeats itself exactly but all this is fairly similar to the Apple/Google battle.

I have no idea how it will play out. I used to be an Apple fanboy and still use several of its products. But Google is doing more interesting stuff. I’ve just bought a Google phone (Nexus S) and find it great fun. Not as elegant as my wife’s iPhone but I think it is pushing the technology faster.

The game might change if Jobs’s leave from Apple is permanent. Apple depends on a regular flow of innovative products from its own stable. Google is more a facilitator for other’s innovation. Jobs has been so dominating at Apple that it is quite possible that there is no one with his enterprise to take over. Plants don’t grow under the shadow of large trees and all that stuff.

Another thing I became convinced of after reading The Master Switch is that the government-owned NBN is very dangerous. Governments can rarely resist the temptation to fiddle in markets and with the NBN the government will have a big and very costly monopoly to protect.

If I am right and mobile is the next frontier, what’s the bet that the government won’t be in a hurry to allow LTE? It is already being installed in major cities in the US but is not even close here.

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173 Responses to Friends don’t let their friends use Apple

  1. Judith Sloan says:

    Did you see the clear levelling off in the uptake of broadband in Australia and the rush to the door of many small internet service providers? Not a good sign for the NBN, I would have thought.

  2. ken n says:

    Yep. I can’t see much room or margin for retail ISPs under NBN.
    The government will blame them for overcharging. Some might find added value services though I can’t think what other than IPTV and movies.

  3. I have no idea how it will play out.

    If you look at Apple’s history, right from the Apple II, they’ve only succeeded in ring-fencing their stuff for a limited time and while they were well ahead of the pack. The Mac is no longer ahead, so it’s going nowhere. The iPhone is only just ahead and losing momentum. The iPad is well ahead for now.

    As a business strategy, it relies not only on significant innovation but the ability to package it all up without involving others. Most innovative companies protect and commercialise their clever bits but allow others to add to it.

    Ultimately Apple has to come unstuck.

  4. Karl Kessel says:

    The iphone is now behind android in global sales. That’s the end.

    The iphone was actually very much more open for development than most previous handset development setups had been. Nokia’s development setup for Symbian used to involve big licence fees. There was J2ME but to sell for J2ME you generally had to sell for to carriers and they took more than the App store does.

    But now Android is more open than the App store and there is more variety of handsets. It’s expected that as the Android tablets come this year they will be cheaper and have more variety than the ipad. Honeycomb, Android 3.0, will add features for development on them too.

    iOS will continue to make Apple good profits for a long time, but it’s no longer the main game for mobile development.

  5. daddy dave says:

    Walled gardens are much maligned. There’s a zealous “open source” movement which is linked to basically an “open content” movement, which is essentially anti- intellectual property. I think you’d find that people who are strong advocates for these views are also strongly anti-capitalist.

    I don’t have a problem with walled gardens. Google is attacking IP on multiple fronts, including google search, Google books, and support of Firefox and Chrome, to name some examples. This earns it cred with the anit-IP sentiment and allows it to attack its competitors seemingly from a moral high ground.

  6. daddy dave says:

    So since Google is basically waging war against IP on multiple fronts, perhaps the principle should be “Friends don’t let their friends use Google.

  7. Fleeced says:

    War against IP? No problem there… the big concern is their war against private property (ie, net neutrality)

  8. Jacques Chester says:

    The Mac is no longer ahead, so it’s going nowhere.

    Yes. I do feel sorry for Apple being only the 4th largest seller of PCs by volume.

    The iphone is now behind android in global sales. That’s the end.

    And all of them are totally crushed by Nokia. That has’t stopped Apple from making $3.88 billion dollars profit off 40% gross margins in the past quarter.

  9. jtfsoon says:

    Open source – I don’t understand why IT geeks think that the majority of consumers are as into tinkering with their gizmos as they are.

  10. ken n says:

    ” I think you’d find that people who are strong advocates for these views are also strongly anti-capitalist.”
    Good grief. Political stereotypes again.
    I don’t think there are any political or moral issues here.
    My interest is simply about what market shape will result in the most innovation. I don’t know, though I expect that Google/Android will achieve that. Until someone else pushes them aside.
    Tim Wu’s book is worth reading – he talks about the importance of creative destruction and disruptive technologies and how those with market power try to stop those things happening.

    Looking back, you can see how Jobs’s walled garden approach meant that Apple lost the market leadership they once had to Microsoft. Windows isn’t open source but Microsoft does not care what hardware it runs on. and allows anyone to write software.
    As a result Gates became the richest man in the world and Jobs didn’t. Though Jobs did OK.

  11. JC. says:

    Make no mistake. The iphone war will define the winners and losers in the entire technology business.

    Of course Apple’s share will go down as others enter the market. But big deal. Apple goes from 100% to 35% of an ever expanding market.

    And as far as google is concerned.. they’ll be in Yahoo’s position within the next decade, bumbling around looking for a buyer.

  12. . says:

    You serious?

    I can see the Zuck cashing in his gilt edged stock certificates in 1-2 years and the FB going under like a hungry mallard in 2-3.

  13. ken n says:

    Jason, it’s not much to do with tinkering. It’s about how much room is given to other companies to innovate for your product. With Windows and Android, that’s a lot. With Apple, not much and on their terms. Apple is innovative but probably not as much as HTC, Samsung and all the other hardware makers, as well as thousands of software developers.
    The tinkerers use Linux which is hardly relevant to this discussion.

  14. Infidel Tiger says:

    And as far as google is concerned.. they’ll be in Yahoo’s position within the next decade, bumbling around looking for a buyer

    That wouldn’t bother me in the slightest, but why do you say that?

    Bought myself a new Blackberry Torch yestrday, which seems to have all the best features of the iPhone and all the best of Blackberry. I’d be too embarrassed as an adult male to own an iPhone.

  15. jtfsoon says:

    iPhone is not short of apps. there is no shortage of ambitious people who want to develop apps for the iphone. is this ‘walled garden’ approach so bad?

  16. ken n says:

    Jason – there’s no good or bad in this. Apple will continue to do very well, though I suspect their earnings growth and therefore share price growth will slow.
    I repeat, my interest is in seeing as much innovation as possible.

  17. ken n says:

    And Jason, again going back into history, when the film studios in the US controlled the movie houses there were plenty of films shown. But they were all from the studio cartel and, in the view of many, not great flicks, compared to what was being made in Europe, Japan and so on. Remember that situation continued till 1966.

  18. JC. says:

    Yea Dot. I think Google is fucked down the road. They have lost sight of what they are and everything they’ve touched beyond what is essentially a web based white pages (that will end up dying the death of a thousand cuts through apps competition) is just so so to average.

    Look at their businesses outside of the “white pages”. What the fuck are they doing funding wind turbines, electric cars and other nonsensical shit they’ve got themselves into?

    They don’t have any superior products outside of their main business and they’re losing focus.

    The smart phone is the most important device there is and hugely important as to who wins there, as it will dictate the terms for all the other technologies. It’s the most strategic threat to Google there is.

  19. ken n says:

    “And as far as google is concerned.. they’ll be in Yahoo’s position within the next decade, bumbling around looking for a buyer.”
    You might be right JC. And if Google just concentrated on search you would certainly be right.
    I really don’t know what their strategy is but I would not bet against them and I think they will provide fun and excitement for a few years to come. Apple without Jobs…I dunno.

  20. JC. says:

    <blockquote>And as far as google is concerned.. they’ll be in Yahoo’s position within the next decade, bumbling around looking for a buyer

    That wouldn’t bother me in the slightest, but why do you say that?

    Because apps and even smarter apps will cut google out of the picture.

    Wanna go eat some place around your area? The app will give you a list of the restaurants there, price range, specials.

    Book a flight? you can do it though an app that will get you the best deal, book the seat, have an e-boarding pass, arrange a better seat for good customers.

    Apps will end up killing google to the point where it becomes a wiki like thing.

  21. JC. says:

    And not to forget the threat from facebook

  22. daddy dave says:

    And not to forget the threat from facebook

    Now there’s a walled garden.
    They did what Yahoo should have done. Yahoo could have been, should have been, the original social network, but they didn’t pull it off. I really wanted Yahoo to succeed but it’s a mess.

  23. Entropy says:

    I’ve just bought a Google phone (Nexus S) and find it great fun. Not as elegant as my wife’s iPhone but I think it is pushing the technology faster.

    To translate: my nexus s doesn’t work as well as my wife’s iPhone, but I have staked out an ideological position that requires me to like the nexus.

    I don’t think those words (open and wall garden) mean what you think they mean.

    I think there is a bit of a misunderstanding of apples business model, which about tight interfering of software and hardware. This is not possible under android, which as mobile makers seek to differentiate their product, risk fragmentation, with apps not working on some products.

  24. ken n says:

    “To translate: my nexus s doesn’t work as well as my wife’s iPhone, but I have staked out an ideological position that requires me to like the nexus.’
    The ability of people here to read the minds of those they have never met is amazing. It’s all nonsense of course but impressive none the less.

    I think you do understand Apples business model (as I do) and it is certainly a good one for the reasons you describe. A lot like IBM when mainframes were king and you bought hardware and software only from them.

    I don’t know if Apple’s model will win. I am very impressed that you can see the future so clearly. No doubt you gave loaded up on Apple shares.

    I am just having fun watching it all.

  25. Ken n says:

    Ent – rereading I might have reacted too strangle. Blame the heat. My apologies.
    None of us know how it will play out, which is why it is so interesting to watch.

  26. Yobbo says:

    Apple has been behind the pack in Desktop PCs since the release of windows 3.1. Yet, people still keep buying them because they like pink keyboards and they are a status symbol due to their high cost.

  27. JC. says:

    yobbo

    I think design in an aesthetic sense is very important to people and it shouldn’t be overlooked…or simply dismissed.

    Apple products are beautiful and make the competitors stuff look like shit in comparison.

    Legitimately, you may think that isn’t important but there are enough people who think it is an important element to consuming technology.

  28. entropy says:

    Yes, Ken, If I was to look at the future, I would see iOS with about 20-30% of the smartphone market, RIM with about 15% windows7 mobile about 3%, WebOS 3%, Nokia about 15% and falling, and android the rest.

    But Apple will have about 70% of the profits. Just like it has about 10% of the PC market, but most of the profit in that sector.
    Google of course will have none of the profits from smartphone sales, because it doesn’t sell hardware. It makes tonnes of money by selling to advertisers information on the users of android devices.

  29. Ken n says:

    Maybe. I’m much more interested in where the innovation will come from.
    At the moment Google/Android show the most potential. Apple might still have a hidden rabbit but I doubt it.
    It will be interesting to see what HP does following their acquisition of Palm.
    All great fun.

  30. Greego says:

    There’s a zealous “open source” movement which is linked to basically an “open content” movement, which is essentially anti- intellectual property. I think you’d find that people who are strong advocates for these views are also strongly anti-capitalist.

    Probably. But most people, capitalists and anti-capitalists, conflate property and intellectual property even though they are unrelated. IP is a form of monopoly grant and is anti-free market. Apple can shove their closed content model up their arse.

  31. entropy says:

    still, I do not believe that android is open in that anyone can access the source code, adjust it to their purposes, and make those changes available to everyone else, which is the true definition of software.

    At the moment, Google controls the underlying OS, which cannot be altered (ie not open). It must be that way or there would be no chance of interoperability between different hardware.

    The GUI can be altered by the hardware manufacturer, resulting in handsets being unable to upgrade to newer versions of the OS until the handset manufacturer updates the GUI to reflect the changes to the underlying OS. This usually does not happen. The whole reason for the existence of Nexus handsets as opposed to other types is aimed at reducing this problem by creating a standard. A cynic would also say it is not in the interests of low margin handset manufacturers to update the OS on a six month old phone. Result: GUI is tied to a particular phone, which again does not meet the definition of open software.

    Google does not control the apps. I guess you could call this ‘open’ in the same sense that Windows7 is open. In other words, it does not mean what a lot of non-geek people think it means. Now, it may or may not end up being a problem in the long run (malicious code is more likely to turn up in android than iOS where the app store is curated), but given the GUI and OS upgrade issues there will eventually get to the stage where the Android app market is fragmented. There will be a lot of feature phones that cannot run many apps, and full blown smartphones similar to the iphone.

    Greego of course, demonstrates what it is that a certain category of geek really have a problem with Apple, and it is related to the more geeky parts of the open software movement. In their view nobody should be able to create something and not allow everyone else to copy for their own profit.

    Apple is also now “the man” which is almost reason enough, but there is also an element of blow back against the endless parade of smug Apple users, very happy with the product they have purchased. And let’s face it, the average Apple user is almost inevitably better looking and cooler than the average geek.

  32. entropy says:

    should be

    still, I do not believe that android is open in that anyone can access the source code, adjust it to their purposes, and make those changes available to everyone else, which is the true definition of open software.

  33. . says:

    It really irks me that if you use a Mac you get second tier OS, browsers and “productivity” packages.

    They do look better but they are less buggy and can sync.

    Someone out there can surely placate all the consumer’s desires, no?

  34. ken n says:

    There’s a zealous “open source” movement which is linked to basically an “open content” movement, which is essentially anti- intellectual property. I think you’d find that people who are strong advocates for these views are also strongly anti-capitalist.”

    Just to clear this up – Linux is very widely used in the server market and in embedded systems. Chances are that your email server uses it and quite possibly the server running this website. I think Linux is equal to or slightly ahead of Windows in that market. Mac OS is nowhere. Lunux is very stable and, as it is open source, users can modify it.

    And there are some excellent Linus distros for PCs – notably Ubuntu – which are in many ways better than Windows or Mac OS. They are never likely to make much progress against Windows.

  35. daddy dave says:

    Just to clear this up – Linux is very widely used in the server market and in embedded systems. Chances are that your email server uses it and quite possibly the server running this website.

    sure. and Open Office is a pretty good free alternative to Microsoft Office. There’s something to be said for open source, and it’s not a black and white issue.
    I don’t agree with Greego that IP is anti-free market.

  36. jtfsoon says:

    some forms of IP are counterproductive like patents. and some enforcement of IP is excessively heavy handed. but a copyright is basically just a type of contract. its legal effects could in theory be also achieved through commonly accepted contractual methods except at higher transaction costs – and indeed this may be increasingly feasible anyway with newer forms of technology. so I don’t see what the issue is unless you’re a flat out left-anarchist

  37. . says:

    Just a refresher:

    http://en.wikipedia.org/wiki/Eric_Maskin#Software_patents

    “Maskin suggested that software patents inhibit innovation rather than stimulate progress. Software, semiconductor, and computer industries have been innovative despite historically weak patent protection, he argued. Innovation in those industries has been sequential and complementary, so competition can increase firms’ future profits. In such a dynamic industry, “patent protection may reduce overall innovation and social welfare.” A natural experiment occurred in the 1980s when patent protection was extended to software,” wrote Maskin. “Standard arguments would predict that R&D intensity and productivity should have increased among patenting firms. Consistent with our model, however, these increases did not occur.” Other evidence supporting this model includes a distinctive pattern of cross-licensing and a positive relationship between rates of innovation and firm entry”

    Sequential Innovation, Patents, and Imitation, by James Bessen and Eric Maskin, Discussion paper, MIT (2000

  38. ken n says:

    It would be interesting to see a review of the costs and benefits of IP. The law grew up under a different set of circumstances.
    I doubt that drugs would be developed at the same rate without patent protection.
    In fact, I understand that the period of monopoly for most drugs is pretty short after they pass the trials and get approved. So the manufacturer charges a very high price while he can.

    It’s funny that many on the left are against patents but all in favour of copyright, which is just another form of government granted protection. Of course, they write books rather than invent things.

  39. jtfsoon says:

    Ken
    your attempt to link this to the left-right business is pure bullshit as if your inference that somehow producing music/writing stories etc yields less economic value than inventing drugs. It’s like you’ve got some non-subjectivist model of economics in your head.

    As I’ve argued, copyright is more justifiable on pro-market principles than patents – it would arguably have just been a natural development from the common law of contract if it hadn’t been legislated. on the other hand a patent actually is a legislated temporary monopoly.

    Re your point on patents, the economic research does suggest that one of the few areas where patents may pass a cost benefit analysis test is in pharmaceuticals.

  40. Greego says:

    “but a copyright is basically just a type of contract. its legal effects could in theory be also achieved through commonly accepted contractual methods”

    I disagree. There is the problem of third parties – for example if a person who had agreed to copyright-like restrictions upon purchase of a book, then sold that book (or lost it, or gifted it), then the constraints of the original contract don’t flow to the new owner without a blanket social contract like copyright. Even if the original owners are liable for damages, content will ‘leak’.

    When I say it’s anti-free market, I mean that IP is outside of regular contract law and property law.

  41. jtfsoon says:

    Even if the original owners are liable for damages, content will ‘leak’.

    And copyright is a means of covering that contingency. And there is no reason it shouldn’t if the social benefits of the institutional evolution exceeds the costs.

    Just as what you call ‘regular contract law and property law’ evolved and was found to be useful because in applying the ‘rules’ as they were discovered and/or made up by common law judges to cover various contingencies, it was found that thhese rules were beneficial to parties in an increasing no of cases and consequently adopted into precedent.

    Yes in practice the common law didn’t ‘evolve’ statutory copyright but statutory copyright arguably builds on the principles of contract to cover such contingencies and acts as a ‘gap filler’. Because it was legislated you can argue it overrules ‘regular contract law’ but we don’t know whether ‘regular contract law’ would eventually have discovered that filling in this gap was useful and evolved some doctrine to cover the contingency to make economies work better. You are apparently unaware of how many made up doctrines there are in common law to cover various contingencies which would violate your simplistic Lockean homesteading view of how rights should be.

    What you call ‘regular contract law and property law’ didn’t just emerge in their present form complete like some Platonic ideal, handed down from God.

    All you rights based libertarians, regardless of your professed religion seem to have this ‘pipeline to God’ attitude to libertarian ideas which actually evolved over the course of history through trial and error and believe they should be frozen at some particular period in time.

  42. jtfsoon says:

    Needless to say my interpretation of law and rights is more Hayekian than Rothbardian.

  43. ken n says:

    your attempt to link this to the left-right business is pure bullshit as if your inference that somehow producing music/writing stories etc yields less economic value than inventing drugs.

    Jeez you’re getting punchy these days Jason. I was suggesting no such thing. Some of my best friends write books and music.
    All IP is an artificial construct. Made law for what seemed to be good economic reasons.
    Many on the left reject patent protection but support copyright.
    I don’t believe they have thought it through and are speaking from their own position of interest.
    Of course, you can argue separately on each form of IP but essentially they are all forms of state protected monopoly.
    Some in third world countries object to copyright because they say it denies them access to textbooks and other valuable information.
    What I would like to see is an economic review of all IP – what would happen without them, how long does each need to be and what provision should be made for compulsory licensing.
    All in the light of modern conditions.

  44. dover_beach says:

    and Open Office is a pretty good free alternative to Microsoft Office.

    Not anymore. MS Office 2010 is much better than Open Office.

  45. ken n says:

    Yes, I am sure you are right d_b but those of us who use a fraction of what Word is capable of are quite happy with OO.

  46. . says:

    1. Maybe we don’t need IP anymore – technology.

    2. There is aesthetic value in owning a book of Harry Potter, rather than a print off downloaded from a torrent.

    3. Current IP law favours protecting products, whereas a less regulated system would see strongly protected proprietary systems. This would work with drugs as well. It’s also why I don’t buy the idea that big pharma won’t or can’t make money out of generics (even though they already do…) and thus won’t research things.

  47. jtfsoon says:

    Let’s pick up on this point acknowledged by Greego which demonstrates how copyright is closer to the contract paradigm than the monopoly paradigm

    Even if the original owners are liable for damages, content will ‘leak’.

    So let’s say that if there was no statutory copyright, the producer of the book could sue the original owner for damages caused by the leak. The original owner, to recover the costs, would then, under ‘regular contract law’ have to sue all the leakers.

    Statutory copyright is almost like a means of consolidating all these lawsuits. Does anyone rule out the possibility that under the ‘common law of contract’ paradigm, the common law wouldn’t have evolved some doctrine for doing the same thing? I’ve forgotten too much of my law to think of a good example but I’d be surprised if there wasn’t some comparable doctrine in some other area of common law which does something similar.

    Statutory copyright is essentially a transaction costs reducing intervention.

  48. . says:

    The tort of negligence?

  49. jtfsoon says:

    yes good point, dot I guess you could think of negligence that way

  50. Greego says:

    “The original owner, to recover the costs, would then, under ‘regular contract law’ have to sue all the leakers.”

    Without copyright law I can’t see how the leakers are in breach of any contract unless they signed one with the seller, in which case the problem moves on to the next buyer. The question is whether the legal thing called a ‘contract’ requires explicit, ex ante agreement – if it does, and the only thing protecting published works are ‘contracts’ then information can leak into the public domain. That’s my only point.

    BTW I’m not that strong a rights-based libertarian anyway, nor do I hold any worldly opinions that strongly; it’s pointless and inefficient and I have very little power to change things in my preferred direction anyway. I just like to categorise things correctly and remove unnecessary complexity. That is, I’m more interested in the discussion of ‘is’ rather than ‘ought’. I’m aware that our legal institutions evolved and that copyright is part of that evolution, etc.. I just point out the fallacies as I see ’em (ie, that copyright could be achieved with explicit contracts alone.)

  51. ken n says:

    Does anyone rule out the possibility that under the ‘common law of contract’ paradigm, the common law wouldn’t have evolved some doctrine for doing the same thing?

    Can’t rule anything out Jason. And as we have seen quite a few times courts are willing to discover law that the legislature either forgot or didn’t have the courage to make.

    But as it stands copyright protection is a gift of the state which can be modified, revoked, extended or otherwise fiddled with.
    The US Copyright Term Extension Act (also known as the Mickey Mouse Act) is an example. There was no real attempt to justify that on economic grounds.
    I am a bit interested in listening to old recordings – there are a couple of clever engineers cleaning them up and rereleasing historical recordings. Naxos releases some outside the US – because they are still subject to copyright in the US.
    As a result there is some beaut old stuff you can’t get at all in the US. Then there is the orphan stuff that Google has had problems with. That should be cleaned up.

    So I think all IP rights are open for discussion and should be reviewed in the light of modern conditions.
    I don’t know much about Creative Commons – that does sound a bit communistic to me.

  52. dover_beach says:

    I’m having trouble following these examples because most of you seem to think of the law in economic-analysis-of-law terms which are clever but seek to understand the law as if it were something other than law, this being economics. For instance, I don’t understand how you can understand copyright as if it where analogous to negligence from a legal perspective. Sure, in some economic sense, both might involve transaction costs, but I don’t see how this allows you to employ the doctrines that are legally a part of negligence in respect of breaches of copyright. Surely, what needs to be asked in respect of copyright or patents are whether unauthorised reproductions of X constitute a moral wrong and whether they caused economic loss to the author/ inventor. Unless the answer is yes to both then there is in all likelihood no legal wrong I would have thought.

  53. ken n says:

    d_b I disagree on the “moral wrong” bit. I can argue either way on the rights of inventors, writers and such and the rights os us all to use, read and so on.
    Morality is a poor basis for law because it is so difficult to get general agreement.
    The justification for IP protection is, I believe, simply that society gets benefits greater than the cost. Encouragement to creativity, inventiveness which might not happen without IP protection. So it then become a question – which is economic – of how much protection is needed to serve that purpose.

  54. ken n says:

    I’l qualify the moral basis of law bit by saying it should not go beyond a fairly small number of values that we all share. So that covers murder, theft, rape…

  55. jtfsoon says:

    Law and morality are all means we’ve come up with of dealing with social conflict and tradeoffs and therefore it’s all subsumed by economics (which shouldn’t be interpreted to be solely about money or finance) which is effectively the science of dealing with such tradeoffs.

  56. . says:

    “but I don’t see how this allows you to employ the doctrines that are legally a part of negligence in respect of breaches of copyright”

    Err, we’re not.

    Calamity averted.

  57. jtfsoon says:

    but to be less provicative, dover my point is simply that a common law doctrine which achieves the same outcomes which statutory copyright seeks to achieve (i.e. providing a convenient means for a creator of goods which are not easily excludable and whose consumption is non-rivalrous to recover economic losses from misuse of the goods by a purchaser) is conceivable and consistent with the past development of common law doctrines (that it didn’t is in part because statutory copyright has already fulfilled that gap)_

  58. dover_beach says:

    d_b I disagree on the “moral wrong” bit. I can argue either way on the rights of inventors, writers and such and the rights os us all to use, read and so on.
    Morality is a poor basis for law because it is so difficult to get general agreement.

    It presents no difficulties in other areas of the law like negligence. Since these are questions that are decided in the courts, it will be the courts themselves that will decide whether A constitutes a moral wrong.

    The justification for IP protection is, I believe, simply that society gets benefits greater than the cost. Encouragement to creativity, inventiveness which might not happen without IP protection. So it then become a question – which is economic – of how much protection is needed to serve that purpose.

    That may in fact be a part of the justification but it is not the whole justification, nor is it very persuasive. Further, I don’t like this sort of thinking partly because of how it has been used in existing areas of the law like worker’s compensation, motor accident compensation, etc. where we have simply socialised the costs of negligence.

  59. dover_beach says:

    Ken:
    I’l qualify the moral basis of law bit by saying it should not go beyond a fairly small number of values that we all share. So that covers murder, theft, rape…

    Yes, but from an author’s/ publisher’s point of view unauthorised reproductions constitute theft.

    Jason:
    Law and morality are all means we’ve come up with of dealing with social conflict and tradeoffs and therefore it’s all subsumed by economics (which shouldn’t be interpreted to be solely about money or finance) which is effectively the science of dealing with such tradeoffs.

    That is something an economist would say.

    but to be less provicative, dover my point is simply that a common law doctrine which achieves the same outcomes which statutory copyright seeks to achieve (i.e. providing a convenient means for a creator of goods which are not easily excludable and whose consumption is non-rivalrous to recover economic losses from misuse of the goods by a purchaser) is conceivable and consistent with the past development of common law doctrines (that it didn’t is in part because statutory copyright has already fulfilled that gap)_

    I don’t disagree.

    Dot:
    Err, we’re not.

    Calamity averted.

    Then what are you doing?

  60. jtfsoon says:

    dover
    dot’s point about negligence is simply that it was analogous to the sort of doctrinal innovation I was proposing the common law could have come up with to meet the same objectives as statutory copyright. I don’t think he was saying that it could be used in substitution for it.

    more to the point, the law of tort imposes a kind of implicit contract which i’m wondering if Greego would find somehow inconsistent with the ‘free market’ despite it having evolved together with property and contract in the ‘free market’ historically.

    I think you’ll find dover that the non-essentialist view of the law taken by economists is actually more consistent with a conservative perspective than the alternatives.

  61. ken n says:

    Yes, but from an author’s/ publisher’s point of view unauthorised reproductions constitute theft.

    And from my point of view, I should be able to get access to everything without charge. Well, that’s not really my point of view but it is fairly widespread – “information wants to be free”.
    And there is certainly no way, using moral values, to decide how long copyright or any IP tight should last. Sonny Bono reckoned it should be infinite. But then he would say that…
    So all this stuff needs to be resolved against some criteria and because there is money at stake I can’t think of a better one than economics.
    Can you?

  62. daddy dave says:

    “information wants to be free”.

    This is a pernicious idea.
    It’s a value statement – it certainly isn’t factually true (since information doesn’t ‘want’ anything.)

  63. ken n says:

    OK OK OK, dd. I agree – tho I’d use “dopey” – but it is a fairly widespread view among the young.

    I’ve just read Kevin Kelly’s book What Technology Wants which I recommend. I don’t quite agree with his conclusion that technological developments are kind of deterministic – they follow an almost inevitable path, based on what has gone before. Still I learnt all sorts of stuff and it got me thinking about technology and how we got where we are.

  64. dover_beach says:

    Jason:
    dot’s point about negligence is simply that it was analogous to the sort of doctrinal innovation I was proposing the common law could have come up with to meet the same objectives as statutory copyright. I don’t think he was saying that it could be used in substitution for it.

    If that was he’s point then yes, I agree, the common law might indeed have developed in such a way as to create a right like copyright.

    more to the point, the law of tort imposes a kind of implicit contract which i’m wondering if Greego would find somehow inconsistent with the ‘free market’ despite it having evolved together with property and contract in the ‘free market’ historically.

    I’m a little wary of this claim re torts that it “involves a kind of implicit contract”; although I think you’ve employed the idea of torts cleverly against Greego.

    I think you’ll find dover that the non-essentialist view of the law taken by economists is actually more consistent with a conservative perspective than the alternatives.

    Firstly, the position I advocate is itself non-essentialist; the difference between it and say economic-analysis-of-law views is that it understands the law on it’s own terms and thus as self-sufficient. Secondly, the facts are more ambiguous the you’d imagine regarding view of the law taken by economists [being] actually more consistent with a conservative perspective than the alternatives.

    Ken:
    And from my point of view, I should be able to get access to everything without charge. Well, that’s not really my point of view but it is fairly widespread – “information wants to be free”.

    Really, even to property? So you should also have access to my living room?

    And there is certainly no way, using moral values, to decide how long copyright or any IP tight should last. Sonny Bono reckoned it should be infinite. But then he would say that…

    Firstly, what, we couldn’t decide that stealing someone’s herd of cows was a wrong without economics? Secondly, the fact that not everyone can agree with the length of time copyright should persist doesn’t mean that we cannot come to a decision any more than not everyone being able to agree on the length of a custodial sentence for murder means that a custodial sentence cannot be achieved. That is what courts do.

    So all this stuff needs to be resolved against some criteria and because there is money at stake I can’t think of a better one than economics.
    Can you?

    Yes, some sort of criteria is needed but economics does not provide that criteria in it’s entirety or even in part; the law, however, does. That is what I intimated in those two questions; whether those questions can be satisfactorily answered will depend upon the resources available in law that could sustain such a claim.

  65. ken n says:

    I must disagree with your last paragraph, d_b, though there is probably no way of resolving that difference. So I won’t try

  66. papachango says:

    Just to lighten up a little and go slightly back on topic, and oldie but a goodie that sums up the marketing differences between iPhone, Android and Blackberry:

    http://www.intomobile.com/2010/11/04/how-iphone-android-and-blackberry-users-see-each-other/

  67. dover_beach says:

    I must disagree with your last paragraph, d_b, though there is probably no way of resolving that difference. So I won’t try

    Surely you can clearly state what it is in my last paragraph that you disagree with?

  68. ken n says:

    Well, most of it. Certainly I believe economics provides the best way of resolving questions about what are synthetic property rights. And I am saying that IP is in no useful way like a herd of cows or a car or a diamond.
    What monopoly do we need to give this person for his IP to induce him and others to keep on doing their stuff, which is valuable to the community?
    I don’t think the law can sort this out – term, scope, compulsory licence or whatever. I can think of judges who would be willing to try, but I would rather they didn’t.

  69. Tillman says:

    1. Apple has never been number 1 in mobile handset sales of any kind. It has always trailed Nokia or Blackberry and now it trails Android by units sold.

    So what?

    Look at these charts:

    http://www.asymco.com/2011/01/31/fourth-quarter-mobile-phone-industry-overview/

    Apple has less than 4% of units sold, but they have the majority of the profit made by handset makers. Who gives a fuck about units sold. It’s a huge market, and plenty of players can sell tens of millions of handsets each. Only Apple is making super insane profits off them, which means (when the time comes) Apple can cut prices to grow market share, if it desires – but Apple knows market share isn’t the be all and end all.

    2. Android has some severe structural disadvantages as compared to Apple. Crappy app store, complete lack of uniformity re OS (Android 2.1, 2.2, 2.3 or 3.0), crappy distribution method of hardware (where is the Android store or the HTC store for that matter – Android depends entirely on carriers to distribute handsets, whereas Apple has completely sidelined carriers and has its own fantastically powerful retail network) and far inferior means of monetising users (Apple has the credit card details of hundreds of millions of iTunes users – there is no equivalent in Android land).

    3. It’s all about the software. Where is Android 3.0? As Tim Cook says, it’s vaporware so far, whereas iOS is on its fourth iteration and is a proven tablet OS. Also, look at the crappy/pirated Android apps. Almost entirely adware. Apple is so far ahead of all competitors on software it’s not funny.

    Competition is great for users. But in terms of user experience AND business model, Apple is number 1 for the foreseeable future.

  70. Infidel Tiger says:

    4. Apple is the number one choice of teenage girls and 40 year old virgins. You know you want be associated with that demographic.

  71. dover_beach says:

    Certainly I believe economics provides the best way of resolving questions about what are synthetic property rights.

    I accept that in resolving such questions the law would refer to economics, but the problem is itself not economic, it is legal. ‘Synthetic’ property rights, as compared to what? All property rights are, in a sense, ‘synthetic’.

    And I am saying that IP is in no useful way like a herd of cows or a car or a diamond

    What has their usefulness got to do with it? And anyway, if it were not ‘useful’ people would not be seeking to profit from it’s use aside from the author/ inventor.

    What monopoly do we need to give this person for his IP to induce him and others to keep on doing their stuff, which is valuable to the community?

    How does “What is reasonable in the circumstances” sound? It’s good enough in contract, torts, restitution, but not in IP it seems.

    I don’t think the law can sort this out – term, scope, compulsory licence or whatever. I can think of judges who would be willing to try, but I would rather they didn’t.

    Doesn’t the fact that we cannot even have this argument without couching the invention or work as in some sense the property of the inventor/ author dissolve your argument? Further, you say that the above cannot be answered by the law even though the law routinely limits the term, scope, etc. of assigned rights as it does for instance in respect of negligence.

  72. Tillman says:

    Teenage girls, 40 year old virgins and Kraut I-Bankers

    Irony is that IT typed his comment on a Blueberry iMac.

  73. ken n says:

    d_b thanks – a pretty good discussion.
    Enough.

  74. dover_beach says:

    Fair enough. A clear and concise statement of the problem with economic analyses of the law can be found here, particularly, pp. 406-10.

  75. Tillman says:

    What has their usefulness got to do with it?

    Under US law at least, absolutely everything. All legal right to intellectual property depends on an analysis of utility.

    Art 1, section 8, clause 8 of the US Constitution:

    The Congress shall have power… to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

  76. Tillman says:

    Or perhaps I misunderstood DB’s point. I had a long lunch.

  77. dover_beach says:

    Under US law at least, absolutely everything. All legal right to intellectual property depends on an analysis of utility.

    It’s not as simple as that, Tillman. You cannot resolve questions relating to the legal right to IP simple by reference to it’s supposed ‘utility’.

  78. Tillman says:

    IP laws do not protect abstract rights, and don’t believe anything Disney says to the contrary.

    Ultimately, if you can’t make an economic argument as to why your right to control information should be legally protected, you are on very shaky ground.

    And if I can make an economic argument as to why I should be permitted to infringe upon your right to a piece of IP, I’m generally on solid ground.

    “Fair use” is an economic doctrine ultimately – the person who makes better use of a piece of info should be allowed to do so.

    2 Live Crew FTW!!!

  79. daddy dave says:

    And if I can make an economic argument as to why I should be permitted to infringe upon your right to a piece of IP, I’m generally on solid ground.

    But you can always make that argument.
    Publisher A releases the latest Stephen King novel, paying royalties to King, of course. Publisher B sees how successful the book is, and wishes that they had it in their portfolio. But in non-IP land, no problemo! So Publisher B does a print run of that novel, but since they have no contract with King, they pay no royalties and can undercut publisher A.
    Publisher C is some kid in Canada who sells King’s latest novel as a print-on-demand book through Amazon. (again paying no royalties to King or publisher A or B).

    This is a mess. Essentially, if there’s no IP, if you write a book, anyone can pick it up and publish it, and pay you nothing for the privelege.

  80. dover_beach says:

    IP laws do not protect abstract rights, and don’t believe anything Disney says to the contrary.

    There is nothing ‘abstract’ about the right of an author to profit from his/her own creation.

    Ultimately, if you can’t make an economic argument as to why your right to control information should be legally protected, you are on very shaky ground.

    It is not an unqualified right to control information, it is a limited right to profit, if only temporarily, from one’s own work. That I should have some sort of right to profit from my own creation would appear obvious. The thought that my right as an author/ inventor to my own work is only meaningful if the economic benefits that accrue in the aggregate out-way the costs again in the aggregate from the recognition of this right seems to me abhorrent.

    And if I can make an economic argument as to why I should be permitted to infringe upon your right to a piece of IP, I’m generally on solid ground.

    Well, why don’t we apply this ‘reasoning’ to all forms of property?

    “Fair use” is an economic doctrine ultimately – the person who makes better use of a piece of info should be allowed to do so.

    No, it isn’t. There may be an economic aspect to the “fair use” defence, but the defence is itself intelligible without recourse to economics. And, anyway, the doctrine did not arise because one makes ‘better use’ of copyright material; it simply relates to ‘fair use’ of that material in the media, university, and the like.

  81. Jarrah says:

    “it is a limited right to profit, if only temporarily, from one’s own work…The thought that my right as an author/ inventor to my own work”

    There’s the rub. The right to profit from your own work isn’t taken away if there is no IP law, which is all about what others can do.

    IP was born of a desire to increase the collective good. Any attack on it, or defence of it, can only be couched in those (predominantly economic) terms. Tillman is quite right in this respect.

  82. JC. says:

    Keyze,

    We’ve been through this swill before and you continue to peddle swill agaisnt intellectual property. Granted some of the claims to ownership could have gone too far. But to be against IP is basically to be against property rights.

    I asked you last time if you thought it was okay to take a book, any book, go to a publisher and stick your own name on it?

    Of course you went into full on Keyzar mode and didn’t really answer the question.

    Removing IP is an awful idea.

  83. daddy dave says:

    The right to profit from your own work isn’t taken away if there is no IP law, which is all about what others can do.

    It is taken away.
    If I write and publish a book, I want my publisher, and only my publisher, to be printing it and shipping it to bookstores.
    I don’t want to be competing with bootleggers who are printing my own newly minted fucking book in competition with me.
    Otherwise, the creation of intellectual property has no financial reward. Explain to me how you figure that’s right.

  84. JC. says:

    IP laws do not protect abstract rights, and don’t believe anything Disney says to the contrary.

    They protect what Disney wants to see protected and that’s good enough, as it’s their property to decide, how its used, who uses it and the price.

    Ultimately, if you can’t make an economic argument as to why your right to control information should be legally protected, you are on very shaky ground.

    One doesn’t need to make a property right argument in economic terms just as I don’t need to make the economic argument that this keyboard I own is mine and not yours.

    And if I can make an economic argument as to why I should be permitted to infringe upon your right to a piece of IP, I’m generally on solid ground.

    See above.

    “Fair use” is an economic doctrine ultimately – the person who makes better use of a piece of info should be allowed to do so.
    2 Live Crew FTW!!!

    Fair use is a slight breach of property rights, but we shouldn’t lose sight that IP rights are real otherwise you could lift whatever you liked even like passing a book as yours.

  85. JC. says:

    Otherwise, the creation of intellectual property has no financial reward. Explain to me how you figure that’s right.

    They can’t.

  86. JC. says:

    I actually argue that the reason we’ve had so many banking crisis is because there’s no intellectual property in the area to speak of.

  87. dover_beach says:

    There’s the rub. The right to profit from your own work isn’t taken away if there is no IP law, which is all about what others can do.

    Nonsense, Jarrah. The ‘right to profit’ arises because it is one’s own work, it is in this sense my property; it certainly isn’t theirs. And I am materially disadvantaged when other parties unconnected with it’s creation reproduce the book and sell it on the market. You might as well argue using your logic that if I use your car of an evening without your permission that this is fine since their might be a collective benefit that might arise from such a practice even though some, including yourself, may be individually disadvantaged by such a practice.

    IP was born of a desire to increase the collective good. Any attack on it, or defence of it, can only be couched in those (predominantly economic) terms. Tillman is quite right in this respect.

    IP was born because people have a right to profit from their own work. That this right has lately been defended (or attacked) in terms of some collective good does not vitiate this fact. You may, however, argue that concern for the collective good may qualify this right but it neither creates it nor ought it nullify it.

  88. FDB says:

    Exclusive rights aren’t like other rights.

    This is the source of both all that is good, and all that is bad about them.

    But whaddayagonnado?

  89. JC. says:

    DB

    Keyze is always attempting to morph his leftist beliefs into libertarianism. That’s he’s coming up with featherbrained crap.

  90. dover_beach says:

    Exclusive rights aren’t like other rights.

    This is the source of both all that is good, and all that is bad about them.

    I’m not entirely sure what you mean.

  91. JC. says:

    Exclusive rights aren’t like other rights.

    You own a home. You have exclusive right to decide what you do with it, which is different to the right of political dissent. So what? You found a semantic difference all originating from the same trough. Whoopee do.

    This is the source of both all that is good, and all that is bad about them.

    But whaddayagonnado?

    No bud. It’s all good.

  92. JC. says:

    In any event IP is loose enough that we saw a huge increase in touch screen smart phone lookalikes as soon as other firms were able to figure just how Apple did it. So IP isn’t that restrictive.

    The American recording body that represents artists is self serving protection racket and they can’t stop people exchange songs between themselves like they’ve tried to do so many times.

    The good thing about modern technology is that it’s forced artists to get back to their roots which was always live performances instead of sitting in a studio for a few hours, then counting the lazy loot that hit their bank account as soon as the recording went out. No more.

    Artists have to perform and trudge around the world to see their audiences.

  93. FDB says:

    D_B – I’m agreeing with you. I mean that the ‘right’ to profit from one’s intellectual/artistic output is infringed by granting the same right to others. Unlike, say, the right to life or free speech. So it’s an exclusive right. If not, it means next to nothing.

    But exclusive rights to commercial exploitation of a work are often the source of bad outcomes too. A recent example being the Kookaburra vs Land Down Under fiasco, which sees a situation of zero loss to the IP holder from Men At Work using the melody (if anything a gain), but now the writers of our best-known modern anthem is financially beholden to the estate of some long-dead writer of children’s songs.

  94. dover_beach says:

    But exclusive rights to commercial exploitation of a work are often the source of bad outcomes too.

    I don’t disagree; I think in that situation the question becomes: did the author/proprietor suffer any material disadvantage by having a part of the melody employed in a different setting? I would say the answer to that is: no.

  95. Rococo Liberal says:

    Oh dear, economists discussing law.

    Privity is the word that you are struggling to find.
    And btw Jason, copyright is analagous to equity, not common law

  96. dover_beach says:

    RL, if you ever get a chance to read this fellow’s work, do so, you’ll like it.

  97. . says:

    “And btw Jason, copyright is analagous to equity, not common law”

    WTF?

    This requires elaboration.

  98. daddy dave says:

    A recent example being the Kookaburra vs Land Down Under fiasco, which sees a situation of zero loss to the IP holder from Men At Work using the melody (if anything a gain), but now the writers of our best-known modern anthem is financially beholden to the estate of some long-dead writer of children’s songs.

    What an appalling joke that decision was.

  99. FDB says:

    “Privity is the word that you are struggling to find.”

    I for one am a musician, and I wasn’t struggling to find an archaic term lawyers use for a simple concept. I was talking about the things we’re talking about.

    Got any thoughts on the things we’re talking about, you wanker?

  100. JC. says:

    I for one am a musician,

    Bongos to be exact.

  101. FDB says:

    Quite apart from which RL – privity is completely inapplicable to intellectual property law, as it explicitly applies only to contracts.

    Are you actually a lawyer? I fucking hope not.

  102. Jarrah says:

    “It is taken away.”

    No, it isn’t. You can still sell your book. What IP laws do is prevent others doing the same.

    “Otherwise, the creation of intellectual property has no financial reward.”

    It depends on the IP. Generally it would have less reward, but not nil. In certain cases it would be reduced to nothing, and in others there would be no change. Also, financial reward can be extracted through alternative means than direct sale or license, so it also depends on the business model.

    “You might as well argue using your logic that if I use your car of an evening without your permission that this is fine since their might be a collective benefit that might arise from such a practice”

    Wrong. If they copied my car and used that, then we would have a correct analogy. This highlights why intellectual ‘property’ is such a special case. We’re talking about ideas. In addition, the raison d’être of IP rights is to increase the collective good, while non-intellectual property rights have intrinsic value.

    “IP was born because people have a right to profit from their own work.”

    Historically, patently incorrect. As I explained to daddy dave, they had that right before IP rights, and IP laws do nothing to change that. What they do is reduce the free-riding of others, and the negative incentives produced by that.

    There is an argument for temporary anti-free-market government-enforced monopolies in the area of intellectual effort, but obviously today’s regime has gone way too far. 30 years is more than fair, IMO, instead of the ridiculous author’s lifetime plus 70 years that has been forced on us by the US, not that the previous plus-50-years was so great.

  103. FDB says:

    JC – just FYI, I’ve decided to only address what you say when it’s either interesting, funny or a genuine response to something I’ve actually said.

    I am thus an agent in your personal improvement. Don’t thank me, it would only embarrass us both.

  104. dover_beach says:

    FDB, RL, I believe, was referring to a conversation up-thread around midday where Jason, greego and dot are in fact discussing contracts.

  105. JC. says:

    I wasn’t trying to be funny, FDB and my comment was genuine, as I thought you once said you play the bongos in a band. The comment was also interesting for those that didn’t know that.

  106. FDB says:

    I’ll briefly break my new rule JC, just to observe that I and I alone will be the arbiter of what is interesting, funny, or pertinent to a conversation between us.

    For you to argue the toss would be pathetic and unseemly.

  107. FDB says:

    D_B – I doubt it, but naturally I’ll leave it to RL to tortuously squeeze himself through the loophole you’ve kindly created for him.

    It’s touching, really.

  108. Greego says:

    more to the point, the law of tort imposes a kind of implicit contract which i’m wondering if Greego would find somehow inconsistent with the ‘free market’ despite it having evolved together with property and contract in the ‘free market’ historically.

    Yes, I would categorise tort as a kind of implicit or social contract. Copyright law could probably be replaced by a new category of tort. Yes, it ‘evolved’ along with other legal institutions, although there are statutory versions as well.

  109. . says:

    “Jason, greego and dot are in fact discussing contracts”

    FMD. Are you autistic DB? How on earth has contract law got anything to do with privity making negligence NOT analogous to a system of transaction cost saving legislation – given the infamous snail case was based on the purchase of a contaminated beverage bottle?

  110. dover_beach says:

    Wrong. If they copied my car and used that, then we would have a correct analogy. This highlights why intellectual ‘property’ is such a special case. We’re talking about ideas. In addition, the raison d’être of IP rights is to increase the collective good, while non-intellectual property rights have intrinsic value.

    Firstly, no, the analogy is fine; analogies do not depend on the objects/ ideas being compared having to be identical since it is accepted that what is being compared are both like and unlike each other. So, to say that IP is both like and unlike real property is unremarkable. And, anyway, all I aimed to showed by means of my analogy was that references to a purported collective good do nothing to nullify what we otherwise enjoy as a right (though it may qualify it). Secondly, that is not the raison d’être of IP; there are at least two things that IP seeks: to protect the right of the author to reasonably exploit their work; and to do so in such a way that does not unreasonably inhibit the dissemination of knowledge in the public domain.

    Historically, patently incorrect. As I explained to daddy dave, they had that right before IP rights, and IP laws do nothing to change that. What they do is reduce the free-riding of others, and the negative incentives produced by that.

    This is too clever by half; you may have explained it to dd and I but neither of us found it persuasive.

    There is an argument for temporary anti-free-market government-enforced monopolies in the area of intellectual effort, but obviously today’s regime has gone way too far. 30 years is more than fair, IMO, instead of the ridiculous author’s lifetime plus 70 years that has been forced on us by the US, not that the previous plus-50-years was so great.

    Yes there is, it partly involves protecting the right of the author and partly promoting the dissemination of material in the public domain. I agree that lifetime plus 70 years is far too long.

  111. dover_beach says:

    FMD. Are you autistic DB? How on earth has contract law got anything to do with privity making negligence NOT analogous to a system of transaction cost saving legislation – given the infamous snail case was based on the purchase of a contaminated beverage bottle?

    No, I’m not dot, otherwise I wouldn’t have said this in response to Jason: I’m a little wary of this claim re torts that it “involves a kind of implicit contract”; anyway, you might like to re-read the conversation started by Jason here and then return here with an apology. So far as your question was concerned, I haven’t got a clue, though it may be a symptom of autism on your part.

  112. . says:

    I have said before that IP laws are a form of welfare for the most talented and punish the less talented…

    You might say “so what”, but what it means is that prices are not rational and everything is reduced to a tournament.

    We cannot correctly know ex post prices ex ante. The idea that an artifical right does this is facniful. If this is true, then HOW does it do it.

    Weaker property rights would result in a more traditional labour market in creative/scientific industries, but with a higher median wage.

    Basically creative work would seek the protection of a salaried type position in a corporate entity in exchange for job security, product distribution management, quasi IP protection and reduced windfalls.

    You could still become super wealthy from writing. You’d also be less likely to become destitute.

  113. dover_beach says:

    I have said before that IP laws are a form of welfare for the most talented and punish the less talented…

    You might say “so what”, but what it means is that prices are not rational and everything is reduced to a tournament.

    Or you might say: This is another reason why one should avoid economic analyses of the law.

  114. . says:

    “So far as your question was concerned, I haven’t got a clue, though it may be a symptom of autism on your part.”

    *I’m not really sure, but I want an apology…*

    Dude, are you serious?

    It will happen if RL comes up with his idea that a lack of privity in a case where duty of care was invented (and now applies to cases where there is privity) means that the negligence law has been formed isn’t some kind of transaction cost saving device. It wouldn’t be a stretch to invent duty of care from the Sale of Goods Act (NSW). [Actually it might be given some of the monumentally stupid decisions like Ashington Piggeries].

  115. . says:

    “This is another reason why one should avoid economic analyses of the law.”

    You’re reducing economics to echastological babble. We shouldn’t apply analysis to the law? Let’s not look at the empiricism of capital crimes vs life incarceration? We shouldn’t look at system design and incentives, or transactions costs?

    WE WILL NOT BROOK WITH BIRDISM HERE.

  116. JC. says:

    People show the love to Happy Hamilton. Some of the comments are really funny.

    Basically Hamilton is saying that it’s Okay to damage people’s property if you’re the right kid of protester.

    http://www.smh.com.au/opinion/politics/tackle-big-coal-at-your-own-risk-20110202-1adok.html

    Eg.

    This was a fantastic article. I could not stop laughing. Does this Hamilton guy do any Live shows at Comedy Festivals? He is SO FUNNY.

  117. C.L. says:

    Sean Hannity confronts Islamic ‘scholar’ Anjem Choudary (who is an Englishman, by the way):

    “You’re one SICK, MISERABLE, EVIL S.O.B. But thank you for coming on anyway.”

    http://viralfootage.com/?p=11310

  118. C.L. says:

    Oops. Sorry. Wrong thread.

    As you were, geeks.

  119. dover_beach says:

    It will happen if RL comes up with his idea that a lack of privity in a case where duty of care was invented (and now applies to cases where there is privity) means that the negligence law has been formed isn’t some kind of transaction cost saving device.

    I’m not really sure he has to as I don’t think he was actually arguing what you believe he was.

    You’re reducing economics to echastological babble. We shouldn’t apply analysis to the law? Let’s not look at the empiricism of capital crimes vs life incarceration? We shouldn’t look at system design and incentives, or transactions costs?

    Of course we should ‘analyse’ the law but this should happen in it’s own terms. No doubt, economic analyses of the law are interesting, but they in no way illuminate or justify legal reasoning. So far as your example is concerned, lets, but they’re not a replacement for legal concepts like causation, proximity, intention, etc. Maybe you should read Weinrib’s criticisms of such analyses that I linked to above and reconsider your position or at the very least understand the position I’m arguing.

  120. . says:

    Maybe you should make a point instead of making up homework. Come on. What is the point? For brevity’s sake.

  121. AJ says:

    In any event IP is loose enough that we saw a huge increase in touch screen smart phone lookalikes as soon as other firms were able to figure just how Apple did it. So IP isn’t that restrictive.

    Apple didn’t invent capacitive touch screens. They weren’t even the first to use them in mobile phones — LG was. Just like they didn’t invent or manufacture the HDDs that made the original ipods possible. Apple invents almost nothing and manufactures even less. They take pre-existing (though usually bleeding edge) hardware and make it accessible and desirable for consumers. It’s its own type of innovation, but not one protected by IP in all but the strictest sense.

  122. FDB says:

    “It’s its own type of innovation”

    Principally marketing innovation.

  123. JC. says:

    AJ, The LG phone is nothing like the Iphone. It’s like comparing a buggy to the Ferrari.

  124. Tillman says:

    There is nothing ‘abstract’ about the right of an author to profit from his/her own creation.

    Bullshit.

    If not abstract, then at least arbitrary.

    There has not been since perhaps around the time of Leonardo a truly original creation.

    Show me one song that’s been in the top 40 in the last decade that cannot be directly traced to either Chuck Berry or Kraftwerk or both.

    All modern creation is derivative of existing works. So it is meaningless to talk of Rihanna’s new album as if it is a purely original creation that “belongs” to her.

    It’s all a melange, and the decision as to which creations should be considered the “property” of the “artist” will necessarily be somewhat arbitrary.

    On that basis, one could equally argue (from the point of view of justice) that there should be no copyright as there truly is nothing new under the sun. Why don’t Chuck Berry and Kraftwerk get a cut of her royalties?

    Further, a breach of copyright does not deny you the possession of your creative endeavours – it merely impacts your ability to profit from it.

    Finally, how can one actually “create” an idea? One may be the first to express an idea, but it doesn’t necessarily follow that fairness requires the first person to commit a particular sequence of musical tones to disc somehow “owns” that series of tones.

    So fairness doesn’t necessitate a copyright regime.

    On the other hand, from the point of view of economics you may want a reasonable copyright regime in order to reward those incremental creations that advance society.

    But you can’t justify copyright by reference to natural law or fairness. You can only justify a copyright regime by reference to economics.

  125. Tillman says:

    Apple invents almost nothing and manufactures even less. They take pre-existing (though usually bleeding edge) hardware and make it accessible and desirable for consumers. It’s its own type of innovation, but not one protected by IP in all but the strictest sense.

    Sheer nonsense. Apple has patents up the ying-yang. Practically every day they are either suing or being sued for copyright issues.

    As for “invents almost nothing”, that is a truly weird statement. They have invented entire product categories.

  126. JC. says:

    Finally, how can one actually “create” an idea?

    By sequencing a set of thoughts together that are identifiable and can be seen to be so.

    There is enough case law around that would have allowed Chuck or whomever to claim infringement as people do all the time. IP law offers some protection but not everything can be protected nor should it be.

  127. FDB says:

    You’re being silly Tillman.

    “Show me one song that’s been in the top 40 in the last decade that cannot be directly traced to either Chuck Berry or Kraftwerk or both.”

    By ‘directly’, I assume you mean ‘indirectly’. Even if not, it would be trivial to do so.

    But you do mean indirectly, and there’s the rub. Should we require musicians to invent their own notes in order to be rewarded for recording a song that makes the whole fucking world go nuts?

    That’s as stupid as insisting on writers inventing their own language.

  128. Greego says:

    “Principally marketing innovation.”

    And quality control. Marketing alone wouldn’t be sustainable if the products weren’t put together well.

  129. AJ says:

    Most of those patents are in software, industrial design and HID. They no doubt have a few hardware patents, but nothing of importance (apparently the ability to pinch on a capacitive touch screen is all theirs). I don’t think the imac sitting in the next room has a single hardware component in it that was invented or manufactured by apple (AMD GPU, same LCD panel as high-end HP and dell monitors, Intel processor, etc.)

  130. FDB says:

    Greego – and that’s the success of the ‘walled garden’ strategy of not licensing their IP out to whatever fly-by-night chumps said they could make the hardware.

    It’s one tiny example to back up my critically endangered thesis that physically building things well is a good business plan.

  131. JC. says:

    Okay, AJ so even if they are an aggregator of technology, leaving aside the fact that the design element is an extremely important factor in all this, what exactly is your point about Apple? It’s not as though they aren’t buying the tech input from the source… the firms that own the tech.

  132. AJ says:

    I am surrounded by Apple boasters in real life and sometimes I take out my annoyance on the internet. Does it need to be deeper than that?

  133. ken n says:

    No AJ so long as we know that’s all it is.
    And that you are not making a point of substance.

  134. ken n says:

    I’m getting to be sorry I started this thread.
    Apple is a wonderful company making excellent products. They were the first to see that physical design was important in phones (and computers) and just about the first to execute the smart phone concept well. It supports one of my business beliefs that it often takes someone from outside a market to take it to the next level.
    Whether you have to invent things or just put them together in an innovative way to be called “innovative” I’ll leave to the semanticists.
    My original question was – what next?
    Whether Apple’s “walled garden” approach, with all its advantages and disadvantages, will lead to the next step (which I think will be in software not hardware) or whether Google’s more open approach will get there.
    I am inclined to think the latter. It encourages more people, particularly hungry startups, to work on the problems. But it could be someone else again.
    Which is why watching all this is so much fun.

  135. dover_beach says:

    dot:
    Maybe you should make a point instead of making up homework. Come on. What is the point? For brevity’s sake.

    Brevity it seems is the mother of misunderstanding; I tried to point out the problem to little avail. Simply read from pp. 406-10.

    Tillman:
    Bullshit.

    If not abstract, then at least arbitrary.

    It is no more arbitrary than other right.

    There has not been since perhaps around the time of Leonardo a truly original creation. All modern creation is derivative of existing works. So it is meaningless to talk of Rihanna’s new album as if it is a purely original creation that “belongs” to her.
    It’s all a melange, and the decision as to which creations should be considered the “property” of the “artist” will necessarily be somewhat arbitrary.

    Only since Leonardo? Anyway, the fact that art, etc. exhibit influence is neither here nor there. At most, it suggests that whatever right we have to profit from our creations it should be reasonable and thus limited in duration.

    On that basis, one could equally argue (from the point of view of justice) that there should be no copyright as there truly is nothing new under the sun. Why don’t Chuck Berry and Kraftwerk get a cut of her royalties?

    The fact that something is or isn’t entirely new shouldn’t give rise to or nullify copyright.

    Further, a breach of copyright does not deny you the possession of your creative endeavours – it merely impacts your ability to profit from it.

    I accept that, but the latter material disadvantages the author and since this damage can only occur when your work is employed in an unauthorised manner by another there is in my view a wrong that occurs.

    Finally, how can one actually “create” an idea? One may be the first to express an idea, but it doesn’t necessarily follow that fairness requires the first person to commit a particular sequence of musical tones to disc somehow “owns” that series of tones.

    Why wouldn’t fairness require that the author own that sequence of tones for a limited period? Or the whole sequence but not portions of the sequence? There are, you see, many positions one could reasonably draw in respect of fairness.

    So fairness doesn’t necessitate a copyright regime.

    Actually, it necessitates a copyright regime of reasonable proportions. If every publisher ripped off a bestseller in the first few days of publication by printing copies and distributing them in book stores authors would be materially disadvantaged and they have a right to reasonably profit from their work unmolested by other publishers who do not pay them a royalty for the privilege of publishing their work.

    On the other hand, from the point of view of economics you may want a reasonable copyright regime in order to reward those incremental creations that advance society.

    You say this as if an author has no right at all to their own work. If you find copyright meaningless for the reasons mentioned you must also find plagiarism meaningless too. Anyway, I would have thought that Saul Bellow has a right to reasonably profit from his own work aside from whatever benefit society may derive from the recognition and acknowledgement of this right.

    But you can’t justify copyright by reference to natural law or fairness. You can only justify a copyright regime by reference to economics.

    I just did, or at least did so prima facie. And, no, the only thing that economics can provided are reasons that qualify this right.

  136. . says:

    The author’s point is that he laments that law is simply an artifice we use to make reality a bit nicer, and economic analysis shows this (and perhaps we should try to design rational and equitable laws).

    The only way law exists in a near vacuum like this is from a natural rights point of view.

    How exactly does this bleedingly obvious conclusion render economics & law useless?

    The idea that you can separate a rational criminal justice system or a civil system revolving around economic and explicit financial sanctions from economic analysis is daft.

    Even judges did/do it in the most mundane of cases.

    The point is not to replace legal reasoning, since we were talking about the optimality of policy in the first place. Like I said, you can only do this in a near vacuum like manner IF you are arguing from a natural rights POV.

  137. dover_beach says:

    The author’s point is that he laments that law is simply an artifice we use to make reality a bit nicer, and economic analysis shows this (and perhaps we should try to design rational and equitable laws).

    Dot, it’s clear that you do not understand his point. He doesn’t anything such thing, if anything, he laments the mistaken notion that economic anaylsis illuminates legal doctrines:

    One would have thought that an approach that purports to reveal the inner nature of tort law would be particularly illuminating about the concepts that pertain to tort law. Negligence liability, for instance, involves a conjunction of legal concepts, such as duty, proximate cause, factual cause, and the standard of reasonable care. Such concepts are fundamental to our understanding of tort liability because they structure the thinking of those who participate in the practice….

    In fact, economic analysis does the opposite. When economic analysis is presented as the key to understanding tort law, the point of the analysis is not to take the fundamental concepts seriously as
    concepts used in legal practice, but to render them otiose. Economic analysis has its own stock of ideas that operate without reference to the legal concepts. The result is that ideas about economic efficiency
    replace rather than illuminate the legal concepts. Instead of functioning as vehicles of thought, the legal concepts are at most labels pinned to conclusions once economic analysis has done all the work.

    He gives an example of this manifest failure:

    Consider two instances, causation and intention. Causation plays a central role in determinations of liability as a matter of legal practice. For the economic analysis of tort law, however, causation turns out to be an idea “that can largely be dispensed with.”10 Given that the purpose of tort law is thought to be the promotion of efficiency, the defendant will be held liable—and thus deemed to be the cause of an injury—when such liability will promote the efficient allocation of resources to safety. Thus, cause does not mark the law’s concern for the transitivity of the relationship between the defendant’s conduct and the plaintiff’s injury, but functions merely as the label
    that is attached to the conclusion of a cost-benefit analysis. Because both parties might have taken precautions, the task for economic analysis is to determine not whether the defendant caused the plaintiff’s injury in the conventional legal sense, but which of them could have avoided the accident more cheaply.

    He also makes the point that economic analyses of the law dissolve the difference between private law and public law:

    By denying the significance of fundamental concepts private law and negating the unity of the defendant-plaintiff relationship, economic analysis divests private law of the possibility of constituting a distinctive mode of legal ordering. From the economic standpoint, private law is to be understood as a judicially created and enforced regime for the taxation and regulation of inefficient activity.16 Courts act as administrative tribunals that set norms for efficient behavior and exact fines when those norms are breached. The plaintiff’s function in initiating a lawsuit is not to secure redress for wrongful injury but to claim a bounty for prosecuting inefficient economic activity. Economic analysis thus submerges the private nature of tort law in a public law of economic regulation.

    It is a cruel irony that the disposition of economic analyses of law are always socialising.

    The only way law exists in a near vacuum like this is from a natural rights point of view.

    He doesn’t say that law exists in a near vacuum, a near vacuum, of course, does not produce the common law tradition and its various doctrines. They certainly were not produced by economic analyses.

    How exactly does this bleedingly obvious conclusion render economics & law useless?

    They are useless to legal practitioners, they may be of interest to legal theorists and other academics.

    The idea that you can separate a rational criminal justice system or a civil system revolving around economic and explicit financial sanctions from economic analysis is daft. Even judges did/do it in the most mundane of cases.

    Are you confusing economic analysis per se with economic analyses of law?

    The point is not to replace legal reasoning, since we were talking about the optimality of policy in the first place. Like I said, you can only do this in a near vacuum like manner IF you are arguing from a natural rights POV.

    But that is what economic analyses of law do; they replace legal reasoning with economic reasoning. Weinrib provides an example above and more in the essay. This is beyond dispute.

  138. . says:

    “But that is what economic analyses of law do; they replace legal reasoning with economic reasoning”

    Um so what. We were discussing it in a policy context, not in a legal matter.

    “he laments the mistaken notion that economic anaylsis illuminates legal doctrines”

    No, he is mistaken.

    Casting aside a whole field of economics with one law journal paper?

    I invoke the ghost of Homer Paxton:

    “Wow just wow.”

  139. dover_beach says:

    Um so what. We were discussing it in a policy context, not in a legal matter.

    Wow, just wow. Was that your response to the development of socialised worker’s compensation, for instance, promoted, as it where, by economic analysis of law? Let’s not worry if A is the cause of X, but if A could have avoid X more cheaply let him/her pay.

    No, he is mistaken.

    Casting aside a whole field of economics with one law journal paper?

    Firstly, he’s not casting it aside; he is saying that it is quite limited in scope. He’s amply shown that even though you want to pretend otherwise. Secondly, one journal paper? You think he has only published one paper criticising this approach and/ or that there are no other papers by other authors doing the same; my god, you sound like a AGWer. If the argument is compelling I don’t care how many papers repeat it or whether or not it upsets a whole field, poor dears.

  140. Rococo Liberal says:

    Economics is the basis of every human dream, eh Dot?

    Marxism raises its defunct head again.

    When are people going to realise that definibng politics or law by reference to economics is like defining a riotten apple by the barrel in which it is contained.

  141. . says:

    “Firstly, he’s not casting it aside; he is saying that it is quite limited in scope”

    “Economics is the basis of every human dream, eh Dot?”

    I keep on saying law & economics is a tool to evaluate policy, I don’t know why you guys whom I know to be intelligent are being so tin eared.

  142. Rococo Liberal says:

    So the argument of the non-lawyers here is that because the law of negligence was developed so that a manufacturer owes a duty of care to the ultimate consumer, it is likely that the law of contract would have evolved naturally so as to make the consumer liable to the manufacturer in relation to copying IP.

    Ha ha ha ha. Negligence was never really concerned with any relationship between the parties. Privity has always been one of the lynch pins of contract law. Someone who isn’t a party o the contract cannot sue on that contract. Hence, absent IP statutes, if I copied a book bought from Smith but written by Brown, then Brown could not sue me as I had no contract with Brown. In the time of Queen Anne, authors convinced the Government that the Crown should create a species of property separate to the physical book. This property would belong to the author and his assigns for a certain period. Those agitating for the change may have been thinking about economics, but I think their real interest was in establishing property rights over intangibles and thus establishing writers as men of substance.. That way lay fame, influence and power.

    Passing off was as far as the Common Law would get in this area. And that only really protects Trade marks and get up not works.

  143. . says:

    Explain this then:

    …and yes I’m clued up and I got it directly from wiki:

    “Privity of Contract played a key role in the development of negligence as well. In the first case of Winterbottom v. Wright (1842), in which Winterbottom, a postal service wagon driver, was injured due to a faulty wheel, attempted to sue the manufacturer Wright for his injuries. The courts however decided that there was no privity of contract between manufacturer and consumer.
    This issue appeared repeatedly until MacPherson v. Buick Motor Co. (1916), a case analogous to Winterbottom v Wright involving a car’s defective wheel. Judge Cardozo, writing for the New York Court of Appeals, decided that no privity is required when the manufacturer knows the product is probably dangerous if defective, third parties (e.g. consumers) will be harmed because of said defect, and there was no further testing after initial sale. Foreseeable injuries occurred from foreseeable uses. Cardozo’s innovation was to decide that the basis for the claim was that it was a tort not a breach of contract. In this way he finessed the problems caused by the doctrine of privity in a modern industrial society. Although his opinion was only law in New York State, the solution he advanced was widely accepted elsewhere.”

  144. . says:

    …NOT clued up

  145. dover_beach says:

    I keep on saying law & economics is a tool to evaluate policy, I don’t know why you guys whom I know to be intelligent are being so tin eared.

    Tin-eared? Economic analysis of law was/ is principally concerned with evaluating and illuminating law (that is why it is called either law and economics/ or economic analysis of law and not policy and economics/ or economic analysis of policy); sadly it doesn’t does that. But you are right in the sense that all this approach does is make the law appear as if it were policy. And thus this undermines the rule of law which has always been there as a bulwark against policy. It is precisely because the law is not policy that it can limit it. Again, this is a cruel irony for libertarians supporters of law and economics.

  146. . says:

    Law isn’t a function of policy?

    Since when did Parliament give up it’s right to legislate, especially here where we have Parliamentary supremacy?

    The only irony is for Australian and British conservatives who foolishly believe supremacy of Parliament does any good.

    Now RL, this is the ratio of MacPherson v Buick Motor Co.

    “If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequence to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. That is as far as we need to go for the decision of this case . . . . If he is negligent, where danger is to be foreseen, a liability will follow.”

  147. Rococo Liberal says:

    Policy is a different kettle of fish all together Dot.

    In interpreting the law, policy is one of the things you must take account of. Economics is not.

    In making law, you try to match the policy you have decided upon. Economics and other law may be a tool in arriving at that policy.

    I only got into this fight because I saw Jason going off half-cocked about the common law. I also wished to establish the fact that it is the law, and not economics that forms the bedrock of society.

  148. . says:

    “In interpreting the law, policy is one of the things you must take account of. Economics is not.”

    I find this extremely dubious given the nature of so much of our law, tax law, tort law, insurance law, contract law…

  149. JC. says:

    Interesting contrast.

    For example, did you know that DELL’s enterprise value is only 6.3x EBITDA?….that the forward PE on the stock is under 10?… and that cash is 40% of it’s market cap? Compare that to AAPL, which has an enterprise value of 15x EBITDA, a forward PE of 15, and cash is 0.53% of its market cap.

    Yes, I know AAPL is kicking the crapple out of DELL in sales, but how cheap does a company have to get before it gets noticed? Besides, did you know that DELL is generating more free cash flow (FCF) per share, as a percentage of it’s share price, than AAPL? (10.2% vs. 4.8%). Is it, or is it not true, that cash is king?

    At some point, DELL may find a way to intrude upon AAPL’s iParty and “get some” of it’s own. Or do you think Michael Dell is just another defeated billionaire wimp with no competitive spirit in his saggy, degenerating middle-aged body? (You don’t have to answer that).

    Let me be crystal clear: I’m not saying go out and load up on DELL tomorrow. But what I am saying is that in all the excitement in the marketplace, some things get overlooked. Perspectives get out of whack.

  150. dover_beach says:

    Law isn’t a function of policy?

    That’s right. No policy was in mind, for instance, when the justices in Donoghue vs Stevenson’s judged that indeed a qualified duty of care was owed to Donoghue. What was in there mind was whether or not Stevenson owed a duty of care to Donoghue in the particular fact-situation before them; certainly they might give some thought to the effect of such a judgement but it is hardly overriding. What is overriding is whether or not the purported duty makes sense and can be justified as a matter of legal reasoning, not because it may increase efficiency, promotes communal responsibility, alleviate injury, and the like. It may do all these things, but that is not the object of the duty; the object of the duty is to do justice to the plaintiff and the defendent.

    Since when did Parliament give up it’s right to legislate, especially here where we have Parliamentary supremacy?

    Don’t be silly, of course, the Parliament when it engages in legislation may engage in policy but it doesn’t only do that unless you interpret every law as having a substantive end which they all do not. And, anyway, most of what passes for engaging in policy happens beyond the legislature.

    I find this extremely dubious given the nature of so much of our law, tax law, tort law, insurance law, contract law…

    I wouldn’t compare tax law to contract or tort law; it is in some sense an exception that proves the rule. You are right in a sense that the drift of law over the last, and this, century has been to appear as if it where an instrument of policy but this has been unfortunate and misleading, practically and intellectually.

  151. dover_beach says:

    The only irony is for Australian and British conservatives who foolishly believe supremacy of Parliament does any good.

    Sorry, I missed this; this won’t do. Rather than throw a straw-man towards me please answer for the tendency of the economic analysis of law approach towards welfarism. Rights are trampled underfoot if there are efficiency gains in so trampling them. Hardly edifying for a libertarian.

  152. . says:

    “No policy was in mind, for instance, when the justices in Donoghue vs Stevenson’s judged that…”

    Arguments for the public good aren’t made in cases where there is economic loss? Of course economic efficiency in the full sense (productive, allocative and distributive) infer justice.

    “the Parliament when it engages in legislation may engage in policy but it doesn’t only do that unless you interpret every law as having a substantive end which they all do not”

    Exactly. That’s what law and economics can help us see.

    Exception that proves the rule? Equity law is centred around trusts, tax law is excessively voluminous and tort law is remedied by reparations or specific actions made.

    You seem to be saying analysing policy on the basis of sound economics is a bad idea.

    The idea that law doesn’t enact policy is daft. How does an incoming Government get it’s agenda on the books?

  153. . says:

    “Sorry, I missed this; this won’t do. Rather than throw a straw-man towards me please answer for the tendency of the economic analysis of law approach towards welfarism. Rights are trampled underfoot if there are efficiency gains in so trampling them. Hardly edifying for a libertarian.”

    This is simply 100% bullshit (Posner etc are responsible for the welfare state) and dodging the inconvenience that conservatives in Australia helped build a system where even constitutional judgments are subject to the whim of Parliament.

  154. dover_beach says:

    Arguments for the public good aren’t made in cases where there is economic loss? Of course economic efficiency in the full sense (productive, allocative and distributive) infer justice.

    Who said they’re not involved? I’ve admitted above that they may form a part of the reasoning, but they do not form the principal basis of legal reasoning otherwise lawyers wouldn’t be required to raise legal doctrines like causation, proximity, reasonable foreseeability, and the like; they could just refer to the economics. And I’ve admitted that legal wrong requires the plaintiff to suffer economic loss (and economic reasoning is of course useful in quantifying these losses) but the economic loss is only operative because the defendant has purportedly wronged the plaintiff; if there is no wrong then the economic loss suffered is immaterial.

    Exception that proves the rule? Equity law is centred around trusts, tax law is excessively voluminous and tort law is remedied by reparations or specific actions made.

    Equity, strictly speaking, is not law. Tax law is excessively voluminous? Yes it is, so what? Does volume make it law? Tort law as has been repeatedly argued is not policy; you might want to interpret it as policy but it isn’t. This is my point. Taking an economic view of the law means that one sees it as if it where policy; that may be a strength in some situations but overall it is a critical weakness if you want to understand the law as law.

    You seem to be saying analysing policy on the basis of sound economics is a bad idea.

    I would only be saying this if I thought law was policy; since I don’t and have repeatedly argued this it should be clear that I’m not.

    The idea that law doesn’t enact policy is daft. How does an incoming Government get it’s agenda on the books?

    I’ve said that the law in certain but not all instances does does enact policy, repeatedly, in as many words. But you might want to explain what policy is enacted by something like the criminal law. What is the substantive end of the law criminalising murder? And how is such a policy different from say a policy to build a road through my property? Or to convert everyone to Catholicism. Recognising the difference may illuminate my position.

  155. Tillman says:

    JC

    What is Dell’s business? They are just a hackneyed commodity manufacturer of low-margin crap.

    They are not even in the same business that Apple is in.

    Plus they have a history of selling broken computers, lying about it and cheating their customers.

    Dell is crap and there’s no growth in their business.

    What’s the last good idea Michael Dell had? Honest question.

  156. dover_beach says:

    This is simply 100% bullshit (Posner etc are responsible for the welfare state) and dodging the inconvenience that conservatives in Australia helped build a system where even constitutional judgments are subject to the whim of Parliament.

    Yes it is, thankfully, that was not what I said. I said that this approach tends towards welfarism; it does, this is well-known. As for dodging, what do you think this approach promises to governments if not an extension of it’s influence? You’ve avoided, for instance, the fact that this approach has been responsible for the institution of a number of no-fault regimes across this country. To this extent, people like Calabresi are indeed ‘responsible’, in part. Posner was somewhat late on the scene; I’m not sure if he was an accomplice after the fact or merely a bystander.

  157. Tillman says:

    DB

    It’s interesting Donoghue v Stevenson produces the same result as you’d get from economic analysis i.e. the law should seek to internalise negative externalities.

    It’s also interesting that it was decided as part of a judicial and legislative tendency in UK, US and here that gradually regulated business and moved towards no-fault liability, workmens compensation, even regulation of working hours.

    So when the judges in DvS were considering the scope of the duty of care they would have had in the back of their minds a very strong awareness that there was a strong policy trend towards expanding the duty of care.

    You are correct that they use the language of legal reasoning to explain their decision.

    But the decision conforms to economic analysis and was consistent with broader policy trends.

    So I am not convinced at all that the outcome was determined by a process of pure legal reasoning.

    I think policy considerations drove the outcome and sound legal reasoning was in effect the archwork that held it together.

    If the answer was dictated by legal logic, then why did it not occur prior to 1928?

  158. Tillman says:

    No fault is bad? Who knew.

  159. JC. says:

    What’s the last good idea Michael Dell had? Honest question.

    Going to gym perhaps. He out on a ton of weight and a (possibly” recent pic suggests he lost some of it.

    The point is that they not going to beat Apple, but it may also be that both stocks are over extended in terms of relativities. When 40% of the market cap of a shit company even like Dell is cash it may be just worth a looksee.

  160. JC. says:

    oops…
    Going to gym perhaps. He put on a ton of weight and a (possibly) recent pic suggests he lost some of it.

  161. JC. says:

    Hey Tillman,

    You been reading about the marital travails of Dell’s bro?

  162. Ken n says:

    Yeah Dell is interesting. 90whatever percent of the PC markets corporate. They want to settle on one brand. It used to be IBM but now it is often Dell. A low cost producer in a commodity market can do very well. Dell seems to be fixing it’s problems.
    I would not write them off.
    Apple must be fully valued. I am more comfortable with a company like Dell which isn’t a tech co than I am with Intel. I understand products . I’m not game to bet on technology.

  163. dover_beach says:

    It’s interesting Donoghue v Stevenson produces the same result as you’d get from economic analysis i.e. the law should seek to internalise negative externalities.

    The question is whether they’d arrive at the same destination without having been first shown the destination. Anyway, does it arrive at the same destination? Does it internalise it? If it did, wouldn’t it assign the cost to those who are in fact at fault rather than to those with the ability to pay?

    So when the judges in DvS were considering the scope of the duty of care they would have had in the back of their minds a very strong awareness that there was a strong policy trend towards expanding the duty of care.

    Yes, I’ve admitted this above but the duty itself has to be justifiable in legal terms, not in terms of efficiency, etc. Stevenson was liable not because it was efficient that he pay but because he failed to give due regard to Donoghue, in this instance.

    But the decision conforms to economic analysis and was consistent with broader policy trends.

    But it need not.

    So I am not convinced at all that the outcome was determined by a process of pure legal reasoning.

    Pure? We’re talking about the common law tradition.

    I think policy considerations drove the outcome and sound legal reasoning was in effect the archwork that held it together.

    f the answer was dictated by legal logic, then why did it not occur prior to 1928?

    Drove? They may certainly have given it some impetus but the common law is practice all its own, it responds to it’s own impetus as well.

  164. JC. says:

    I am more comfortable with a company like Dell which isn’t a tech co than I am with Intel. I understand products . I’m not game to bet on technology.

    You seem to have good company, Ken. The market despises Intel for some reason. They can do nothing right without some anal-yst bagging the shit out of them.

  165. Tillman says:

    What is the common law’s impetus? It’s not logic.

  166. . says:

    Agreed Tillman, Lord Atkin used the bible to arrive at some of his conclusions. Yet under common law we used to hang thieves. Isn’t logic meant to be consistent?

    If law and economics has lead to no fault, it is bad economics. Proximity is probably a flawed legal doctrine. But admitting that the system has flaws which don’t get changed internally under legalism alone (as Tillman has pointed out), you’ve redeemed Law & Economics, in spite of yourself.

  167. daddy dave says:

    I’m getting to be sorry I started this thread.

    Ken, this has been an excellent thread. A really interesting discussion.

  168. ken n says:

    Hey d_b and dot – do you mind me asking if either or both of you are lawyers? You clearly have more than a lay knowledge of the law – your approaches remind me of some academics in jurisprudence (a fascinating discipline) I once knew.
    Just curious…

  169. dover_beach says:

    Tillman:
    What is the common law’s impetus? It’s not logic.

    Since logic has no impetus you are correct. It’s impetus is resolving disputes in accordance with justice.

    dot:
    Agreed Tillman, Lord Atkin used the bible to arrive at some of his conclusions. Yet under common law we used to hang thieves. Isn’t logic meant to be consistent?

    You mean to say Lord Atkin referred to a part of our moral inheritance. Not sure what you mean by the last remark and since legal reasoning is not only deductive, but also analogical, I’m sure it’s not particularly relevant.

    If law and economics has lead to no fault, it is bad economics. Proximity is probably a flawed legal doctrine. But admitting that the system has flaws which don’t get changed internally under legalism alone (as Tillman has pointed out), you’ve redeemed Law & Economics, in spite of yourself.

    Firstly, not necessarily, it may simply mean that what may be economically sound can be bad law. Secondly, proximity qualifies the scope of the duty, as such, I don’t see how it can be considered flawed. Thirdly, of course, the law is flawed, it is a human creation, but the genius of the common law is that it is continually being reviewed and amended as disputes arise which potentially cut across the grain of what we consider just in the circumstances. And thus it is wrong to say that these flaws do not get changed internally; they do.

    I will admit that the law and economics approach does show how law is not incompatible with efficiency even though the law is concerned with doing justice to the parties, not in achieving the most efficient result for society at large.

    Hey d_b and dot – do you mind me asking if either or both of you are lawyers?

    No, but I have an academic interest in the philosophy of law.

  170. ken n says:

    Good O – thanks d_b.

  171. Just Passing By says:

    An interesting play by HP/palm today. Annoucing webOS devices. Nothing super exciting about the tablet and smart phones (with the exception of the touch transfer between devices) but the real shock was that it will be on personal PC’s. The first truely cross device OS. Microsoft and Apple would be a little concerned if this gets any traction

    This has the potential to be a game changer if they can get the app developers involved. It certianly has a lot of appeal to the developer community. 1 OS for multiple devices.

  172. Ken n says:

    Yeah It will interesting to watch HP They have plenty of cash. But among developers they compete with iOS and Android. Tough

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