The Digital Media Project

 

Source

Philip Merrill

Title

TRU #37 of contractual commerce

No.

040929merrill01

 

Name:

Philip Merrill

Affiliation/additional information:

Active Contributor, Pasadena, California

Date submitted:

2004/09/29

 

#

Criteria

Description

1.

Name of TRU

Right of contractual commerce

2.

Summary description of TRU

A broad right pertaining to TRU political freedom because the ability to do commerce requires a degree of social stability for financial transactions governed by agreements to succeed; the right to pursue commerce including contracts -- the fixation of mutal agreements -- is legislatively governed by a myriad of large-to-small commercial laws

3.

Use records of TRU

According to whether this TRU is looked at from a Public Authorities perspective or else a businessperson's perspective, it presents divergent views -- governments regulate commercial contracts and forbid many transactions, but a businessman functions from a perspective of freedom, emphasizing what can be done and negotiating any of a huge variety of permitted contracts. In the real world, many forbidden contracts are executed and signed but can be (wholly or partially) unenforceable in court. Aside from governmental interference, a businessperson's freedom to negotiate is most likely to be restricted by negotiating partners who are in a strong position to make demands.

The prospect of mutual benefit has enticed many people to form agreements. In the analogue world, a classic example is when two people each have something the other person wants because both things can be used to greater value if an exchange is made. One can imagine applying DMP Terminology to this by picturing the terms and conditions of an agreement as a Value-Expression in which the defined elements of the Expression are considered of sufficiently equal value to be exchanged. The parties to the exchange have been part of the value-chain for whatever each gives and subsequently become part of the value-chain for whatever each receives. As stated, this is not intended to refer to digital matters specifically, and indeed digital considerations present economies that can make profit and large mark-ups for resale quite challenging. In the conventional analogue view, it is more common that something is transported from someplace that has plenty of it and exchanged for something that is more scarce so it can be sold at a profit.

4.

Nature of TRU

Although this is one of those TRUs that can be considered as old as civilisation itself, or even older than that, the specifics of what commercial contracts can be pursued vary greatly in their details. The U.S. is an example of an extremely commerce-friendly environment. Its federal government regulates interstate commerce; a Uniform Commercial Code provides detailed overall guidance for many matters; its court system is extremely friendly to the enforcement of contract language, for example real estate leases. The U.S. think tank Cato Institute routinely placed a great value of this TRU as possessing multifacted and vital benefits (e.g., http://www.cato.org/dailys/01-20-04.html). At one time so-called "freedom of contract" was an accepted doctrine in U.S. law (e.g., http://www.independent.org/publications/tir/article.asp?issueID=21&articleID=255), but was undercut by social regulatory concerns such as fair working conditions and hours.

The capacity granted by a sovereign to its population for the formation of agreements can be an engine of social change and transfer of wealth. This TRU has disruptive potential and yesterday's agreements are susceptible to negation by present day realities. For example, European history has numerous examples in which mercantile interests became increasingly wealthy only to find all or much of their wealth seized in order to pursue sovereign interests such as military concerns. Some historians believe that the concepts of widespread individual rights and property rights were brought about by the desire of merchants to avoid this.

5.

Benefits of TRU

Middle-Men in general benefit and commercial contracts could be considered primarily to occur business-to-business. Although Authors and End-Users engage in many activities that are governed by contracts, a signed contract is not worth much without funds to hire attorneys and the availability of a dependable court system. Public authorities benefit from taxes on wealth created by profitable agreements.

6.

Possible digital support

It is particularly interesting that much of this analogue TRU involves fixated physical media in a small number of certified copies. That would not be hard to reproduce in DM, especially considering all the protections built in for security anyway. This could be the basis for a DMBM of forensic video, in that field contracts could be made in a Gobi desert scenario by combining video recording with third-party registration of a final digital "master" version including declarations of context and terms following an overall approach necessary for it to be used in court (e.g., names, preferably no cuts/edits).

In addition, the fullest realisation of the Digital Media Manifesto vision would require innovative contracts and licensing as well as innovative technology. The standardisation of contractual terms and conditions protecting Authors and creators of other types could be pursued by representative industry bodies in a progressive and proactive manner, potentially enabling digital and unprecedented economic activities. For example, the comment was made on a DMP e-mail reflector regarding TRU to edit for personal use: "I would expect that long before laws guarantee extensive personal editing rights for audio/audiovisual materials, such usages would need to become common practice within the scope of mutually beneficial business agreements." Many things DMP would probably like to see enabled for common use in the digital environment might need to demonstrate their viability through contractual commerce before becoming widely granted rights.

Support for this TRU is also likely to help support for TRU to choose mode of economic compensation.

7.

Requirements

none at thistime