Disqus - Latest Comments for WilsonF

Re: I Am a Dysonite II

WilsonF — Thu, 26 Mar 2009 01:30:01 -0000

If there is one thing we have learned about regulation, is that it is not very good at achieving its ends. This is what Will's piece is all about, but it's going to be even worse in other countries, especially when we start putting pressure on developing countries to cut back more. Those programs are likely to be a real mess. Even if we reduce the pace of our greenhouse gas output, we will do so in far less than an efficient fashion. In doing so we will destroy a lot of wealth, and I worry that we'll find ourselves with the same problems but we'll be a whole lot poorer and thus less prepared to deal with them.

Re: Small and/or Limited Government: Some Distinctions

WilsonF — Sun, 22 Feb 2009 21:20:52 -0000

As other commentators have implied, I think your comments, while valid, understate the extent to which 'large' government leads to unlimited government in practice. This is an empirical question, of course, and I could be wrong. However, I strongly suspect that by concentrating resources in the hands of politicians an oppressive predator state is the eventual outcome, regardless of your underlying rights principles. In this way, I believe that "small" government has rhetorical value.

Still a good post, and I agree with it.

Re: "Now the red man can get ahead, man"

WilsonF — Tue, 20 Jan 2009 23:57:42 -0000

http://www.willwilkinson.net/flybottle/2009/01/...

This is making the rounds, but it's pretty hilarious.

Re: "Now the red man can get ahead, man"

WilsonF — Tue, 20 Jan 2009 19:24:55 -0000

What the fuck? Is this still Erin's blog? Was she replaced with a random female undergraduate from Oberlin? Erin, where is your cynicism?

For myself, I'd like to see every inauguration end like William Henry Harrison's.

Just JOKING. I wish him the best...but this cult of personality that surrounds him, I cannot stand. I oppose the president on principle, because no one with so much power should be so popular and given such deference.

Re: I’m Back

WilsonF — Fri, 16 Jan 2009 01:19:10 -0000

Huge congratulations. Well done sir.

Re: Bee Happy!!

WilsonF — Wed, 14 Jan 2009 23:14:04 -0000

AWESOME

Re: Dean Baker on Libertarians and the Fight Against Corporatism

WilsonF — Tue, 18 Nov 2008 17:18:15 -0000

Richard Epstein put out a book in 2006 which discussed at length this question of pharmaceutical intellectual property rights. His general conclusion was "two thumbs up". Find a summary of his argument at the article he wrote below:

http://www.boston.com/news/globe/ideas/articles...

Re: Surprise! I’m a Libertarian!

WilsonF — Tue, 11 Nov 2008 16:40:36 -0000

That's it, I'm not a libertarian anymore. I'm a Wilkinsonian.

Re: Against Fake Libertarian Clarity

WilsonF — Tue, 11 Nov 2008 13:40:06 -0000

Will,

This is a great followup, it helped me quite a bit. I suppose this is true, and all it is is a justification for libertarianism in the name of utilitarianism. I can get behind that.

I suppose my problem is that social and emotional coercion seem to be flexible and subjective. I think I need a more clear definition of what these mean, because it seems to me they necessarily must be tied to a baseline standard of freedom.

I would also say that the natural rights conception is useful in that it provides clear rules that also happen to mostly coincide with what is in the utilitarian best interests of society.

Re: Can I Write-In Boba Fett?

WilsonF — Tue, 04 Nov 2008 22:19:32 -0000

This is pure win. It's a trap!

Re: Yesterday’s NYC Economist Debate

WilsonF — Tue, 04 Nov 2008 13:00:39 -0000

I was really sorry I missed this. I assume it is podcasted somewhere...

Re: Freedom of Contract and Contract Costs

binarybits — Tue, 04 Nov 2008 11:03:14 -0000

The problem is that the no-reverse-engineering clause is specifically targeted at the small minority of users who want to reverse engineer. The firm isn't going to sign separate agreements with those people because they don't want people reverse engineering their software and producing compatible versions that could compete with their own. See, for example, the BNetD case.

Re: Freedom of Contract and Contract Costs

WilsonF — Tue, 04 Nov 2008 10:24:37 -0000

Tim;

Thanks for giving me a good take at what benefits can come from unlicensed software. It's something for me to chew on.

I still think it's possible that this type of offer and acceptance can be efficiency increasing. I wonder then if the small number of users who want to reverse engineer the product can't simply get together and sign separate agreements with the software companies? Clearly still we have a situation where the company derives a benefit from making a contract with all users that only a small number of users would have rejected. It's just a less obviously efficiency-enhancing provision. This reverse engineering issue is really interesting.

It's hard for my to deny the enormous benefits of open office. I will ponder...

Re: Freedom of Contract and Contract Costs

binarybits — Tue, 04 Nov 2008 00:28:40 -0000

Hey Wilson,

Thanks for the thoughtful reply. I think this is where we disagree:

If Pro-CD is not able to prevent Zeidenberg from using the software in a commercial fashion, he can do a lot of damage to their business. They'd just rather not sell it to consumers at all than be unable to impose this contract on Zeidenberg.

The Pro-CD case is a great example, and I'm glad you brought it up. However, I don't think we ought to start with the assumption that ProCD needs to be able to employ a particular business model and then reason backwards to the legal system required to support that business model. I think it's way too pessimistic to assume that in the absence of this particular enforcement mechanism, that they'd be unable to engage in price discrimination and therefore unable to produce their product at all.

More to the point, if you think that the kind of information ProCD produced is worthy of copyright-like protection, the right way to deal with that is to amend copyright to include some kind of right database protection. Congress and the courts have specifically considered and rejected the idea that this kind of factual information should be covered by copyright law. It strikes me as perverse to use a contract-copyright hybrid to allow copyright holders to restrict the use of their works in ways that neither contract law nor copyright law, by themselves, permit.

Now, you want to know what the big deal is. A key point is that the fact that some activity is only performed by a small fraction of customers doesn't necessarily mean that it's not important. As a computer geek, my personal hobby horse is reverse engineering. Software EULAs routinely have clauses forbidding reverse engineering, which makes it very hard for engineers to examine software, learn how it works, and produce interoperable software or hardware devices.

Why does that matter? Well, consider Open Office. It exists because some determined free software developers reverse engineered the Microsoft Office file formats and implemented competitive versions. Open Office produces immense social benefits. Its users obviously benefit from it, but users of Microsoft Office also benefit, because it gives Microsoft some competition and saves customers money. So all things being equal, it's better to have a policy that makes projects like Open Office easier to create.

So lots of people benefit from Open Office and therefore rely indirectly on the benefits of reverse engineering, but only a tiny fraction of those people actually want to engage in reverse engineering themselves. So it's to everyone's benefit to have contract that don't make it too easy to restrict reverse engineering, even though only a few people will actually take advantage of that privilege.

To return to my earlier point, copyright law protects reverse engineering as fair use for precisely the reasons I described above. So software developers' efforts to write "no reverse engineering" rules into their EULAs amounts to an effort to expand their monopolies beyond the bounds permitted by ordinary copyright law. If Congress decides that reverse engineering isn't beneficial after all, it can amend copyright law to say that reverse engineering is fair use. But as long as copyright law permits reverse engineering, I think contract law should look very skeptically at novel interpretations of contract law that effectively nullify the traditional limits on the scope of copyright protection.

Re: Freedom of Contract and Contract Costs

AlexHarris — Mon, 03 Nov 2008 23:07:07 -0000

Clearly, what you economist types (and I include Tim in that statement) will think of the contracts in question depends on how good you think their content is. If the contracts all said "...and, further, the customer agrees to paint Bill Gates' house and wash Paul Allen's cat and the customer is deemed to accept this agreement by breathing for thirty seconds after having received these terms," I doubt you would be such a fan. Tim's point is that, in principle, such obviously inefficiently one-sided terms can sneak in when one side can make a "contract" on behalf of both parties.

I'm a deontologist. I don't care what the terms say. It's just plain unjust to bind me to something I never agreed to.

Re: Freedom of Contract and Contract Costs

WilsonF — Mon, 03 Nov 2008 19:14:59 -0000

To clarify, I would say that it's OK to impose a reviewing cost in this situation since that cost is likely to be very very low--people won't review because they have no incentive to, and the benefits that construe to the software company are large.

Re: Freedom of Contract and Contract Costs

WilsonF — Mon, 03 Nov 2008 18:38:49 -0000

Tim, I have very much enjoyed this series of posts from both you and Alex. . .I'm not an expert on these matters, but I find this question really interesting. I basically still don't see the efficiency problem here.

"Rather, the goal should be to align incentives so that a party only offers a contract if its benefits to all parties outweigh its expected costs."

I think it's easy to imagine a world where this assumption leads to the conclusion that contracts should be this easy to form. The 'half-the-costs' analysis fails because the items at issue are very small probability, so to any individual consumer the benefits for negotiating on them are vanishingly small, but to a company that sells a million units, the benefits are large.

The terms do not apply to the vast majority of consumers; either they are uninterested because the terms relate to unlikely situations (forum selection clauses, like in Carnival Cruise) or they relate to conduct the user has no intention of engaging in (such as commercial exploitation, as in Pro-CD). If Pro-CD is not able to prevent Zeidenberg from using the software in a commercial fashion, he can do a lot of damage to their business. They'd just rather not sell it to consumers at all than be unable to impose this contract on Zeidenberg.

If the alternative is forcing Pro-CD to paste the necessarily complex agreement on the outside of the box, or to make people read it at the door of Best Buy, no one is going to buy their product. However, in a world with shrinkwrap contracts people can happily buy the Pro-CD software, and take it home and use it and never risk violating the license agreement.

I think (but don't know, an important distinction) that the reason other products aren't sold with special contractual attachments is that the potential benefits are rather small, and the market is keeping them in check rather than a theory of agreement. Maybe I'm wrong, maybe the court has held them unenforceable, but I would think that between Carnival Cruise and Pro-CD if there was something there they'd exist. I could be totally wrong about this stuff, but those are my thoughts.

As you know, I love your stuff. Keep it coming.

http://people.hofstra.edu/peter_j_spiro/cyberla...

Re: Why Libertarians Should Oppose “Shrinkwrap” Contracts

WilsonF — Wed, 29 Oct 2008 21:47:02 -0000

I suppose my last comment on this is that I suppose you are right, that if the customer did not know that there were terms before the purchase, there is a good case for voiding the contract. Note, Gateway could fix this by saying over the phone "this purchase is subject to terms and conditions." I still think that practical concerns outweigh this, but I suppose I could be convinced otherwise.

If you do know, however, that there are likely to be some terms with the purchase of a computer, I don't think Gateway is 'imposing' upon you by requiring this form of acceptance. It's simply a part of an ongoing transaction, one which you subjectively may find bothersome, but not one that is out of out of order--especially given my argument above that the terms are not likely to be particularly burdensome in light of the marketplace.

Re: Why Libertarians Should Oppose “Shrinkwrap” Contracts

binarybits — Wed, 29 Oct 2008 13:59:26 -0000

presumably you knew there would be terms included along with the item you actively purchased when you purchased it

Really? That's a serious question. I mean yes, I know this because I used to write about this sort of thing for a living, but I don't think it's at all obvious that the average Gateway customer knows that computers will come with a licensing agreement.

And I still don't understand why Gateway is entitled to dictate what I must do to avoid being a party to a contract. Sending a computer back isn't costless, even if Gateway is paying for shipping. I might have to drive to the post office--or maybe I don't have a car. I might have to wait around my house for the UPS guy to pick up the package--but maybe I've got a busy schedule and can't afford to take an afternoon off. And maybe I needed the computer right away for some important consulting job and can't afford to send it back. Why does Gateway get to say that I have to either accept its terms or bear those costs?

Re: Why Libertarians Should Oppose “Shrinkwrap” Contracts

WilsonF — Wed, 29 Oct 2008 13:49:55 -0000

Well I think this is a good point and a defensible hard line to take that affirmative action is required to consent to a contract, but I think if the courts held that way the world would different in a bad way in terms of the availability and prices of goods and services. I admit I am no expert here though and perhaps this isn't true at all. I think markets protect consumers from bad adhesion contracts and good adhesion contracts are important to sellers, since explicit acceptance is very practically difficult, as mentioned above.

Yet, I don't think adhesion contracts are defenseless on a consent theory. Gateway is not dictating to you a contract you never asked to be a part of; presumably you knew there would be terms included along with the item you actively purchased when you purchased it, and when you cracked the box the terms made it clear what it takes to reject. In addition, I would imagine you can solicit Gateway for the terms of the purchase before delivery and receive them.

Re: Why Libertarians Should Oppose “Shrinkwrap” Contracts

ryanradia — Wed, 29 Oct 2008 13:37:31 -0000

I think objections to shrinkwrap contracts would be muted greatly if returns were a simple process with no cost involved. I'm still not sure if I think that'd completely vindicate shrinkwrap contracts, though.

Re: Why Libertarians Should Oppose “Shrinkwrap” Contracts

binarybits — Wed, 29 Oct 2008 13:35:21 -0000

The question is what constitutes consent to a contract. My position is that a valid contract does not exist unless both parties have taken some affirmative step to indicate assent to the contract. Failing to send a computer back is not an affirmative step. I mean, how about this: instead of shipping the computer back to Gateway, how about if I simply mail back the contract with a note saying that I don't accept it? Is it still a valid contract then? If so, why does Gateway get to dictate to me what I have to do to avoid being party to a contact I never asked to be a party to in the first place?

Re: Why Libertarians Should Oppose “Shrinkwrap” Contracts

WilsonF — Wed, 29 Oct 2008 13:34:45 -0000

This really seems to me to be solved by the idea that customers know that there ARE likely to be terms and they can return the product to reject the terms once they are aware of what they are.

Are you saying that if we spotted people a couple of bucks to send the product back that this whole issue would be solved? If not, what am I missing?

Re: Why Libertarians Should Oppose “Shrinkwrap” Contracts

ryanradia — Wed, 29 Oct 2008 13:32:37 -0000

Shrinkwrap contracts are bad because consumers who want to read the terms, can't do so until they've already paid the money and taken possession of the product. I don't always read the ToS of every product I buy, but sometimes I do, in which case I should have the chance to do so at the point of sale.
I don't think anybody is saying that it's wrong for companies to attach terms of use with their products. The question is when those terms should be presented to prospective buyers.

Re: Why Libertarians Should Oppose “Shrinkwrap” Contracts

ryanradia — Wed, 29 Oct 2008 13:30:35 -0000

It doesn't matter if most people don't read the terms as long as they have the have the ability to discover the terms of a purchase before they actually fork over the cash and receive the product. People who don't care about the terms in the first place will be unaffected by the change.