I was talking with Kevin Carson about the problems with the "contractual" model of IP "that so many people grab at in desperation" (for more on this see here and here). Carson said:

As Cory Doctorow put it, a computer is a machine for copying bits. If you put a cultural artifact into bits, it's going to get copied. And anybody whose business model depends on stopping people from copying bits is f*cked, plain and simple. As horrifyingly accurate a prediction as Stallman's "Right to Read" is of the copyfascists ideal world, I think it's about as plausible a threat as Khrushchev's plan to catch up with the West by 1970.

See A very long talk with Cory Doctorow, part 1; also Cory Doctorow, Microsoft Research DRM talk and Copying Is What Bits Are For.

[SK crosspost]

I read the "very long talk" all the way up to the point that the obnoxious, insulting author of the piece (my opinion) insulted two of the greatest authors of science fiction, Heinlein and Herbert. If the author has no better appreciation for great science fiction than that, then everything else the author says involving Doctorow is completely irrelevant.

I love the fact that the word "copyfascist" has caught on.

http://www.google.com/search?q=copyfascist

Contract fails to substitute for copyright not because it cannot constrain 3rd parties, but because it can only exchange property, it cannot alienate someone from their liberty to reproduce it.

I can loan you a CD, but (without copyright) I cannot get you to surrender your liberty to copy it - even if you wanted to.

Crosbie, if I lend you a CD, why couldn't I require I would only do so if you promise not to copy it?

A promise would alienate me from my liberty, so no can do.

We can agree to exchange property, but we can't agree to bind ourselves to the performance or non-performance of certain actions in the future.

We can make exchanges contingent upon future events, but we need to supply the property to be exchanged up front.

We can put a loaned CD and $505 into a pot, and say that if X happens you get both, whereas if X doesn't happen you get a CD+$5 and I get $500. X could be you finding evidence that I have copied the CD.

However, you can't loan me a CD for $5 and say I owe you $500 if during the loan you discover evidence that I've made copies.

See Murray N. Rothbard: Property Rights and the Theory of Contracts.

Crosbie:

Of course, if you failed to make the promise, then I will not provide you with the CD. Your need for unfettered liberty is greater than the risk I wish to take.

Anon, people remain free to make promises, it's just that it would not be ethical for the state to bind people to them (to prosecute them for not keeping them).

People have plenty of incentive to keep their promises in the form of maintaining their reputation and trustworthiness.

Crosbie:

Fundamentally, all contracts are promises and all promises are contracts. In terms of civil law, contract law is probably the most "pristine" and highest held of civil laws, and enforcement tends to be generally objective. It matters not the nature of the "promise" or "contract." Contracts are held in such high regard that they are one of the few non-controversial areas of law (relatively speaking). The reasons are self-evident, as well as having been discussed over and over again.

And before you start getting into contracts that violate other laws, that has already been litigated and is done and over with. Though contract law is held in high esteem and overturning a properly written contract is nearly impossible, contracts must bow to criminal law. So, you cannot indenture yourself (become a slave) to someone. You cannot sell one of your kidneys or a liver via contract (though you may give a kidney away of your free will). Essentially, no contract that violates a criminal law and most civil laws is enforceable.

Violation of imaginary "natural rights" is not typically considered a reason to not enforce a valid contract.

Anon. Haven't you ever paused to wonder why the law is the way it is? Why can't you be a slave, why not sell a liver, etc.?

Underneath law, you'll find the protection of the individual's natural rights.

Some may well prefer they were consigned as imaginary creatures to mythological oblivion, but it is dangerous to lose sight of the very real, very natural laws underpinning the legislature.

When the legislature diverges too far from natural law, perhaps to harness people in favour of corporations, you get civil unrest.

Belligerent defense of 'the law', in contempt for natural law, isn't constructive.

I don't think the law matters nearly as much as the mentality of the people. Even if it was possible to recreate intellectual monopoly in contracts, with more and more ideas available on the market without such restrictions, anyone selling only on the condition of monopoly would be ridiculed and perhaps even prosecuted under anti-trust laws.

Kid:

In fact, the government routinely looks at patent holders for anti-trust behavior, and does prosecutes under anti-trust laws.

You also mention whether "it is possible" to create intellectual monopoly in contracts. Of course it is. It is done all the time. In fact, I believe it is quite common to do so.