UNILATERAL IMPLIED OFFER

The unilateral implied offer conflict

We have made extensive use of this concept since its conclusion once executed (the unilateral implied contract) is what creates the mechanism through which absolute IP rights are lost. It is then important to further analyze this concept to satisfy ourselves that there are no issues.

The biggest concern we could think of, is the apparent contradiction between an absolute property right and the backdoor that a unilateral implied offer creates into this principle.

The argument goes like this. In an Absolute Austro-Libertarian system the rights of ownership are absolute. As such, any person interacting with other people's property without a valid contract is liable for the full extent of the interaction. However, if we introduce a mechanism where a third party is allowed to interact with somebody's else's property in a valid manner and this manner depends only on the observer, then the absolute rights of ownership are utterly destroyed. In other words, we are allowing for somebody else to decide what they can do with our property. This point needs to be resolved or the entire IP theory rejected. These are the two only options.

The unilateral implied offer in relation to regular properties

The previous example where a person places a TV on the curb for others to pick-it-up clearly summarizes the standard process for regular or "normal" properties; this is, properties that have physical existence.

For this type of properties there are usually cultural clues as to what it means for somebody to own a property, absent explicit labels. If a house is inhabited we automatically assume that somebody owns the house. If somebody places a TV on a curb, we automatically assume that this person is trying to get rid of the TV.

In other words, unilateral implied offers are pretty straightforward through the cues provided by the physical properties themselves.

However, having said that, it is to be noted that no contract is perfect. In the world of physical properties it is certainly possible to create the impression that a unilateral implied offer exists when this is not the case. To prevent misunderstandings of this sort, it is entirely up to us, the property owners, to make sure we are not generating a message which can be misunderstood. The easiest way to do this is simply to label the properties.

A sign reading "Private Property" suffices. In these circumstances it is clear an obvious that no such unilateral implied offer can possibly exist.  Furthermore, the idea that our property rights are absolute also entails the notion that we are absolutely responsible for our properties. In other words, it is entirely up to us to make sure that there are no misunderstandings.

In plain English, if you don't want things taken away from you, don't place them on the curb to begin with!

Therefore it is clear that the concept of a unilateral implied offer does not oppose nor threaten the concept of absolute property rights. On the contrary, it is fully included in it.

The unilateral implied offer in relation to Intellectual Properties

As we have mentioned before, IPs are not regular properties. Some of their characteristics are different than "normal" (i.e. physical) properties. But if this is the case, we would then have to expect that they would behave differently to certain degree. This implies that we need to be extra careful with our analysis.

In order to do so, we will split this analysis in two cases.

Case #1: Economically inactive IPs. These are the IPs that never leave our brains. As they don't do so, it is impossible for a unilateral implied offer to exist since nobody (with the exception of the IP owner) is aware that said IPs exist. Therefore this case is trivial in the sense that no contractual interaction is possible.

Case #2  Economically active IPs. These are the IPs our theory deals with. The primary question is simple: if unilateral implied offers are no threat to "normal" (i.e. physical) properties, why should they be a threat to IPs?

The answer is that IPs need to be bundled with physical transmission means in order to express their economic potential. This forces us to analyze the problem from two perspectives.

Perspective #1: Transmission medium ownership. This requires the condition that the transmission medium be absolutely and infallibly controlled by its owner; i.e. no leaks whatsoever. As this is not physically achievable, any leak becomes a homesteadable property and as such a potential loss of ownership. The solution to this problem with "normal" properties is to label them, however, this solution is mostly not applicable to a transmission medium; for example how do you "label" a photon?  It is certainly possible to encode information in a stream of photons, but how do you encode ownership information on every single photon? This is not possible.

Perspective #2: IP ownership. This kind of property has no physicality. As such its control is fully dependent from the physical transmission media. The only way to ensure absolute control is by never releasing the IP from the brain, which would prevent its use in economic activities. But as we have seen in the Perspective #1, absolute control of transmission media is not possible. There is always a non-zero possibility that it will become homesteadable. But if this happens, what is it telling us about the control of our IP? That we cannot control it absolutely once tied to a transmission media. But if we cannot control IP absolutely, can we at least label it? Labeling IP would accomplish the same as labeling physical property. We argue that this is not possible.

How exactly do you label an idea in a manner in which is independent from its physical transmission media? This is required because an idea attached to a physical transmission medium is simply an idea. There is no link (of any kind) between this label and the idea we are trying to label.

For example, we could transmit a two part message.

First Part = "The next idea is mine"

Second Part = "The Idea"

But the problem is that the First Part is not attached to the Second Part. There is no relationship of any kind between parts and as such there is no guarantee that the statement of ownership (the First Part) is indeed valid or even referring to the Second Part.

This is akin of John placing a label on Mark's house that reads "The next house is John's property". How valid is this label as a statement of property? Not much. Actually none whatsoever. We have no idea if it is true or false without actually speaking with John, who is unavailable and we don't even know if he is trustworthy. The only unquestionable labeling method is the one where the label is on the property itself. This is so because the most basic assumptions are:

Only the owner will have access to the property

It is ridiculously unlikely that any non-owner will label somebody else's property with the name of the real owner. There is no gain in so doing.

The same is true with trying to label an idea using its transmission medium. Is a method that does not work.

The only method that would unquestionably work is if we could label the idea itself using an idea in a manner in which both ideas are unquestionably linked. The only problem is, there is no way to do so.

This is not a problem with physical properties, since the label is physical itself and it is placed on the property. But how do you place an idea on an idea? It is simply not possible.

Labeling through encryption

A spin-off argument from the non-labelibility property of ideas is the "packaging" argument. We know that we cannot place an idea label on an idea, but how about packaging the idea and the statement of ownership idea in the same container. We could do this by encrypting both ideas in the same cryptographic block. Wouldn't this be sufficient "proof" of ownership?

This would be akin to say that John's label stating "The next house is John's property" is now placed on the border of John's house but critically outside John's property. It is still not on John's property. This changes nothing in helping to determine if the label is valid or not.

Because both ideas are packaged in the same cryptographic block, we know that they were both encrypted sequentially and probably by the same person in the same encryption operation. But this tells us nothing about the relationship between the ideas in the block.

In other words, we still don't have a clue whether the idea statement of ownership is valid or not.

Yet another suggestion is to use the properties of the idea itself to encode a statement of ownership. Such an example would be steganography; the hiding of information in pictures.

For example, we could take a picture (our idea) and using steganography embed a statement of ownership. Apparently this would be a way to add an idea label on an idea. Would this suffice?

No. This is simply yet another way to package an idea with another idea. We know that both ideas were probably packaged by the same person but this tells us nothing about the relationship between them.

Packaging ideas with ideas (in any manner) simply tells us about their external properties (properties about the ideas themselves; meta information if you like). It could tell us a great deal about the packager, the type of package, the day/time of the packaging operation, the technology that was used and so forth. It may even strongly suggest ownership, but it does not in any way provides an unquestionable statement of ownership. This is so because packaging tells us nothing about the internal properties (intrinsic properties) of the ideas. An idea statement of ownership must have an internal property unquestionably linking it to the target idea for it to be valid. This "link" is the hypothetical bonding element that makes sure that the statement of ownership idea is actually referring to the idea.

In the physical world this is achieved by placing the label on the property itself. However, in the IP world, we can only get to the boundary of the idea and never on the idea itself. This is the crucial difference.

Perfect labeling

But let's go a step further. Let's assume that through a magical technological process we can actually label an idea with a statement of ownership idea. Furthermore, we could do so in a manner that it is independent from the transmission medium.

Would this suffice?

Yes and no. What this would mean is that the statement X indicates that the idea Y belongs to Rita in an unquestionable manner.

Great!

But there is a problem. What happens to a copy of Y? To whom would a copy belong to? Unless the copy itself is accompanied by the statement X, a copy of Y is un-owned and as such homesteadable. What this means is that the original idea Y is unquestionably Rita's property, but an exact copy without the statement X can be owned by anybody. This is also possible because as we mentioned previously IPs have different properties and many people can own 100% of the same IP without any physical laws being broken.

Could X be removed from Y in a valid manner? No. But if it is removed in an invalid manner and then passed on to innocent third parties, the copy Y becomes un-owned. Remember, it is not the fact that the original Y is identical to the copied Y that makes it Rita's property, but the fact that X was attached to Y. Once detached it is free for all.

OK. So now let's assume that through yet another miraculous technological breakthrough we can label an idea with a statement of ownership idea and we could do so in a manner that it is independent from the transmission medium. Furthermore, we can label the original idea in such a manner that the statement of ownership cannot be separated from the idea itself under any circumstance.  This is the case where we have an inextricable XY idea containing a statement of ownership and the contents which cannot be separated from each other without destroying the content Y.

Then, and only then, can we say that every single copy of XY anywhere in the universe belongs to Rita.

How likely is this? Well, considering that the technology required to do this is not even in science fiction books, we would say that it is extremely unlikely.

This means that in the real world, there is no way to label an idea with a statement of ownership in such a manner as to be unquestionably linked. Period.