The Morality of Copyrights and Patents

[Thomas M. Miovas Jr. 4]

I'm hesitant to start this thread on oo.net due to several issues I have had with people taking the opposite stance and due to my suspicion that even some Objectivists do not understand the nature of copyrights and patents, and hence oppose them.

 

In a moral society -- one in which it takes man's life as the standard and recognizes individual rights as stemming from the nature of man qua man -- issues such as copyrights and patents are an extension of the fact that the creator of a product has the absolute right to set terms and conditions of using his product. To post this message here, I have to agree to oo.net's Terms and Conditions, and everything I post here is covered by copyright law. Now, I could post some sort of Terms and Conditions of presenting an essay here of my own and say that if you read my posts, you have to agree to my terms and conditions (within the bounds of the T&C of oo.net). But that would be extremely cumbersome if we all had to sign a T&C agreement for everything we partook in or bought in our capitalist society. So, by law, it is recognized that the creator of a product has certain rights that are protected, without him having to get each end user to sign a T&C for every product he makes. Under copyrights and patents, and by buying or using the product, you basically agree not to duplicate the creator's work -- you agree to participate in that transaction without stealing from that producer. And, yes, copying and pasting or downloading without permission and then re-distributing a production digital format is a type of stealing. You are basically taking his product and claiming it as your own without proper compensation agreed to between you and the producer of that product. It's not that copyrights and patents are granted by the government, but rather a proper government recognizes the rights of the producer and defends them.

 

I'm mentioning this because there are some Objectivists who believe that getting huge fines or long jail sentences for copyright and patent infringements should not happen. But if you steal a copyrighted or patented product, the producer has the right to get just compensation or to punish you for stealing his product. So, for a case like Aaron Swartz, who tried to download and then re-distribute the the entire JSTOR data base and then post it to the internet without the owner's permission, deserved to be punished for that infringement. I'm not sure I agree with a fifty year sentence, which the prosecution was aiming for, but when one keeps in mind that JSTOR charges $25 or so for each article, and that he downloaded many hundreds and thousands of such articles without permission, then it can be said that he stole hundreds of millions of dollars worth of intellectual property. And he had to be punished for this action.

 

Now, it turns out that JSTOR is run by academia, which is, in part, paid for and supported by tax dollars taken by force; but not everything is paid for by the taxes, those universities do charge tuition and other fees, and they do their own research and compile them into JSTOR. The muddies the issue to some degree, but does not change the principle that the creator has a right to set terms and conditions of using his product. Universities and academia should not be supported by taxes, but this does not mean that each and every tax payer or former student or MIT Fellow has unlimited access to those files and articles. This is a clear case of the "Tragedy of the Commons" whereby ownership is difficult to establish, but it does not mean that Aaron Swartz himself owned those articles and property.

 

For more information, and to get this thread off to the right start, I highly recommend reading Capitalism: The Unknown Ideal and especially Miss Rand's article on Patents and Copyrights:

 

http://aynrandlexicon.com/lexicon/patents_and_copyrights.html

 

 

[lidryn 1]

Thomas, there are a lot of openings here, but I'll take the JSTOR angle.

I'm not at all sure about the ownership structure - an IRS filing might help with that - but you may find this to be of some related interest:

Kevin Guthrie, Rebecca J. Griffiths & Nancy L. Maron
Sustainability and Revenue Models for Online Academic Resources
Published May 01, 2008
www.sr.ithaka.org/research-publications/sustainability-and-revenue-models-online-academic-resources

 

This report (available in PDF) may be more relevant to your larger purpose of discussing the moral aspects of intellectual property, but it is worth noting that JSTOR has a statement on the Aaron Swartz affair: about.jstor.org/statement-swartz

 

hope that helps.

[Thomas M. Miovas Jr. 4]

I guess you don't have anything to say on the topic yourself, as you want me to read a 66 page study of academic research in the digital age and want me to read JSTOR's commentary about Swartz and their dealing with him. If you find opening, take them. But JSTOR's apologetic response to the issue is not-withstanding the issues I raised. It doesn't justify wholesale theft of intellectual property.

[Thomas M. Miovas Jr. 4]

Besides, JSTOR is being completely evasive of the issue of individual rights and intellectual property rights. They make no statement about those issues whatsoever. I would actually expect this from the Leftists in Academia who want to get rid of individual rights and the whole notion of private property and the rights of the producers of human goods and services. I suppose they are in an awkward position, because to stand by individual rights would require them to state that they have no right to the taxes forcefully taken from others to fund their research (at least in part). Like all straddlers of an intellectual fence, they are completely helpless in the face of moral issues. Note that I am not saying that Swartz should have been given a fifty year sentence nor that he should have committed suicide. But I think part of the reason the prosecutor went after him like he did is that JSTOR is not considered to be private property and thus could not literally drop the charges against Swartz since they could not claim absolute private property rights to JSTOR. In some cases under the law, no particular person needs to file a complaint against a violator of rights; the law must take care to settle the issue even though no one files a given complaint. If it could be established that JSTOR was private property, then, yes, they could have dropped the charges and that would have been that.

 

But Swartz and JSTOR are just the most recent example that made the headlines about grand theft of intellectual property.There have been others that are well noted, and yes, those perpetrators are spending a lot of time in jail or will have all or most of their wages taken from them to pay for their crimes. The point is that Swartz had no right whatsoever to continually access JSTOR and take that property against the wishes of the owners or stewards of that property. The fact that they made Swartz give it back and do other things to clear his crime is proof that he didn't have that authority.

[Nicky 585]

Thomas, there are a lot of openings here, but I'll take the JSTOR angle.

I'm not at all sure about the ownership structure - an IRS filing might help with that - but you may find this to be of some related interest:

Kevin Guthrie, Rebecca J. Griffiths & Nancy L. Maron

Sustainability and Revenue Models for Online Academic Resources

Published May 01, 2008

www.sr.ithaka.org/research-publications/sustainability-and-revenue-models-online-academic-resources

 

This report (available in PDF) may be more relevant to your larger purpose of discussing the moral aspects of intellectual property, but it is worth noting that JSTOR has a statement on the Aaron Swartz affair: about.jstor.org/statement-swartz

 

hope that helps.

I don't understand your point. Mind spelling it out a little more?

[Dormin111 31]

There was a thread a few years ago where Don Athos raised some good points against IP which I never saw adequately addressed. I can't find the thread so I'll repeat what I can remember.

 

First, at the heart of IP is the concept of possessing an "idea" as a form of property. How can this be so? An idea is not a physical asset (practically speaking) and can be "reproduced," "possessed," or even modified infinetely. To get around these oddities, IP theoritst have to create these strange provisions to IP as a form of property which don't apply to any other forms of property. Why is IP the only property which arbitrarily expires after a certain period of time? How does someone differentiate between stolen IP and a good produced from a similar idea?

 

Second, IP advocates claim that using someone's else's idea without his permission is theft because the intellectual labor of the property production was only performed by the originator of the idea. This is problematic in two aspects. First, it is not always true. Multiple individuals can come up with the same idea without ever making contact with one another, yet IP law arbitrarily grants protection to the first cliaminat of the patent or copyright, thereby punishing any later creators. And second, even if an idea is stolen, it would be false to say no intellectual rigour goes into the production of a product based off of that idea. The theif producer would still need to concive of how to build the product off another's template. I agree it would be fraud for the theif to claim the idea as his own, but to build a knock off and admit its nature is not theft or dishonesty.

[Nicky 585]

There was a thread a few years ago where Don Athos raised some good points against IP which I never saw adequately addressed. I can't find the thread so I'll repeat what I can remember.

I remember addressing those points . What in my replies do you find inadequate?

I'll address them one more time:

First, at the heart of IP is the concept of possessing an "idea" as a form of property.

Straw man. Here's what's really at the heart of IP:

http://aynrandlexicon.com/lexicon/patents_and_copyrights.html

From the link, just a few snippets that directly contradict your straw man: "An idea as such cannot be protected until it has been given a material form."; "It is important to note, in this connection, that a discovery cannot be patented, only an invention. "

Second, IP advocates claim that using someone's else's idea without his permission is theft because the intellectual labor of the property production was only performed by the originator of the idea. This is problematic in two aspects. First, it is not always true. Multiple individuals can come up with the same idea without ever making contact with one another, yet IP law arbitrarily grants protection to the first cliaminat of the patent or copyright, thereby punishing any later creators.

Punishment implies that an objective value has been taken from someone. But, in fact, there is no objective value to reinventing something a second time.

That's why there isn't a right to profiting from reinventing something a second time. The only person who is creating value is whoever invented the thing the first time.

And second, even if an idea is stolen, it would be false to say no intellectual rigour goes into the production of a product based off of that idea.

Another straw man. The actual claim is this: "the physical labor of copying is not the source of the object’s value".

That says nothing about whether intellectual rigor went into the act of copying something or not, only that the intellectual effort that is the source of the object's value was not the copying, but the original creation.

[Thomas M. Miovas Jr. 4]

It is very important to realize that the action of filing for or declaring a copyright or a patent is NOT a declaration that one cannot think about the ideas behind the products nor can prevent you from you yourself making an improvement on the application of the ideas behind the product. There are absolutely no restrictions of thinking or what you do with ideas in your own mind. The restriction is strictly on the fact that the innovator was the one who brought the idea to physical fruition, made a product based upon an idea, which would not exist without him doing so, and he retains the rights to the **product** not the idea behind it. Henry Food cannot prevent you from thinking about the Model T; he cannot prevent you from coming up with a different type of automobile; he cannot prevent you from using mass production techniques. What he can prevent you from doing is making unauthorized copies of his product because by declaring and receiving a patent for the Model T, he is placing a restriction on what you can do with his product -- namely that you cannot reproduce it without his permission, and by buying a Model T you, at least implicitly, agree to those terms and conditions.

 

Likewise with buying a movie or going to a movie theater to watch a movie. The creator of that movie has placed a restriction on you watching that movie, and the restriction is that you cannot copy it or distribute it without his permission. This is the root of having a copyright.

 

By declaring that all of my work is copyrighted, I am placing a restriction on what you can do with my essays. You are quite free to read them insofar as I have made them available to you at no charge now (though maybe charging for longer essays in the future), and the only restriction I make by declaring a copyright is that you do not have my permission to distribute them without my permission. I cannot prevent you from thinking through the issues. I cannot prevent you from understanding the ideas behind intellectual property rights. I cannot prevent you from writing your own essay on the topic, pro or con. I cannot prevent you from having an idea in any way whatsoever. What I can prevent you from doing is taking my essay without my permission and putting it somewhere I would rather it not be. That is my right by creating those essays that go from my mind to a blank sheet of paper (digital or otherwise).

[lidryn 1]

I guess you don't have anything to say on the topic yourself, as you want me to read a 66 page study of academic research in the digital age and want me to read JSTOR's commentary about Swartz and their dealing with him. If you find opening, take them. But JSTOR's apologetic response to the issue is not-withstanding the issues I raised. It doesn't justify wholesale theft of intellectual property.

Sorry if that was not useful - perhaps a little more on the ownership of JSTOR would be? The entity/corporation is known as "Ithaka Harbors":

http://www.lincc.us/PubApps/showVals.php?ein=133857105

(this includes links to their 990 filings as a 501©3 entity)

 

and here's another person, looking at the question:

http://www.generalist.org.uk/blog/2011/jstor-where-does-your-money-go/

 

So do I have any opinions on copyrights and patents? Still reading, I'm afraid - intellectual property is fascinating, but I don't consider myself well-informed enough to contribute more than a few references.

[lidryn 1]

[snip]

Now, it turns out that JSTOR is run by academia, which is, in part, paid for and supported by tax dollars taken by force; but not everything is paid for by the taxes, those universities do charge tuition and other fees, and they do their own research and compile them into JSTOR. ...

[snip]

Thomas, I don't think this really describes how JSTOR functions or how it is governed. For one thing, the corporation operates more as a middleman or jobber between the publishers of the scholarly journals and the subscribers to the database of digitized journal articles. Not to go on incessantly with the references, but this is another useful one:

www.newworldencyclopedia.org/entry/JSTOR. A similar resource (mentioned in this entry) is Project Muse, and it's a short step from there to EBSCO and Gale - more subscription services. So anyway I just wanted to get that out there in case anyone was interested in digging into the current state of the business of information-by-subscription. And I'm done with the JSTOR stuff...

Just so this is clear: I don't have any issues whatsoever with the position you're articulating on copyrights & patents, insofar as you've made one; similarly, I don't think Aaron Swartz is much of a "culture hero".

 

But here are a couple of questions for you: first, do you have any opinions about the "open access" movement in scholarly publishing? Second, prompted by the New World Encyclopedia article noted above, what do you think of the "Creative Commons" licensing agreement? Finally, what sort of mechanisms do you think are practical in preventing (or seeking restitution for?) violation of your own work, which appears in digital form? Pirates or plagiarists, shaming them doesn't seem to have much effect.

You may know that Charles Dickens was a victim of this, even in an age of paper, ink & press: American publishers weren't subject to the limitations of British copyright law.

[Thomas M. Miovas Jr. 4]

Thanks for the references re JSTOR and who owns / operates the database. Looks like you are right that academia per se does not run it but rather academia contributes to it, and JSTOR is owned as part of a corporation. While JSTOR did receive some government funds, it doesn't look like it is primarily supported by government funds or tax dollars, which makes the case against Swartz all the stronger, since he can even less be seen as someone returning stolen goods to the people. Of course, there is still the issue of the articles generated by academia who are themselves, in part, funded by tax dollars.

 

But that wasn't really the root of my argument anyhow. I mean, unless one could show all that data / articles was in fact stolen and had to be returned, then the case is stronger that Swartz was stealing private property -- the digitized form of those articles run by JSTOR as owned / operated by a corporation.

 

The idea that taking a digital copy of something without permission is a type of theft was the main argument. It's theft because it violates the owner / operators rights of distribution. Most of the counter-arguments I have heard is that nothing is taken from the owner if one freely distributes digital copies of the original because one can make such a copy without decreasing the original. But this evades the right of the creator / owner to set terms and conditions of the use of his product. And, at least in part, distributing his product without his permission is taking away his market, which he owns simply by offering a unique product that he created.

 

As to my stance regarding "creative commons" and the movement to turn the whole internet into a creative commons, I am completely against the idea, as the main power of the internet is a recognition of private property and intellectual property rights and would not exist without those protections of those rights. See my essay "How the Internet Works."

[Thomas M. Miovas Jr. 4]

Added an update to my website entry on this topic:

 

Update 04/02/2013:

Turns out that JSTOR, the digital archive of academic works, is not run
or operated by academia (colleges and universities), but rather a
corporation who had negotiated with the originators of certain articles
and publications to be the distributor of those in digital format. In
other words, they have paid for the right to distribute those articles and
papers in digital form. I think this makes the case against Swartz even
stronger, though JSTOR dropped the charges after he returned the illegal
copies and made amends, because it decreases the ides that he was
returning something stolen from the people (via taxes to support academia
in part). This makes it no different from someone stealing movies and
programs from companies who produce those items. And if one looks at the
filing for JSTOR, one will find that their total assets are over $100
million and that Swartz attempted to steal every bit of it for himself;
which definitely puts him in the category of a major grand theft
individual.

http://www.lincc.us/PubApps/showVals.php?ein=133857105

Rights are an abstract concept. The fact that you own a particular
physical item does not necessarily mean that you own all the rights to it.
Just as one can own land and not own the mineral rights to that land, so
one can own a physical copy of some item (a movie or a book) but not own
the rights of distribution of that product. A stated copyright or a filed
patent means that you do not own the distribution rights of that product;
and therefore do not have the right to take it upon yourself to distribute
it without the rights owner's permission.

[Dormin111 31]

Nicky, I see my error on Rand's definition of IP, but I still have trouble reconciling the perimeters of this property right.

 

You say - "Punishment implies that an objective value has been taken from someone. But, in fact, there is no objective value to reinventing something a second time."

 

Is that always so? Is it the case for the guy who got to the patent clerk's office 10 minutes before the "original inventor." Or what about the case of an inventor accidentally inventing an existing product in a market where the original invention does not yet exist?

 

And second, why do patents have time expirations? I found Rand's proposal for patent lengths to be uncharacteristically arbitrary

[Thomas M. Miovas Jr. 4]

The idea that the person trying to get a patent but missing the opportunity by 10 minutes is a case of borderline applications. Yes, the second guy likewise was an innovator (assuming he knew nothing about the first person's ideas and practices); but the second guy filed for a patent in order to block all others from using his product without his permission -- so why should he complain that he didn't get there first? would he have the same opinion if he got their first by 10 minutes; would he permit the second guy filing to have his market as well? I think not. I actually know a guy at work who filed for a patent on a heated toilet seat after coming up with the idea while working on a plastic that had metal filings in it and could conduct electricity. He missed it by a week or so. But he was looking forward to having a patent and making millions of dollars, so why begrudge someone else having the same idea and getting there first? But I think it has to be kept in mind that not getting there first is not a punishment in any way. Just as one is not punished if one's best girl marries someone else, so one is not punished if someone beats you to the patent application. Try something else to make millions.

 

Regarding the time limitations on patents. I think part of this would depend on the broadness of the patent itself. I have heard respected Objectivist intellectuals claim that a patent should be as broad as the concept of the invention, in effect. In other words, when the inventor of the radio filed for a patent, not only should he have a patent on that particular machine, but he should own all frequencies that could possibly be used for communications via EM waves, and every conceivable adaptation of any machine that could use EM waves. This is far too broad, especially considering the technical limitations of the first radio. Over the years, patents have become more and more narrowly defined. So much so that a little change can be filed for a new patent, like bending a wrench a few angles to better get at an automobile part. Why wouldn't the inventor of the wrench have a patent that would also cover minor variations of his original application? If a patent is severely limited, then I don't see the need to have an expiration date on a patent; but certainly if the case were different and the first radio maker owned all the frequencies and every possible configuration of a machine that used EM waves, then a time limit would be set up so as to not stifle innovations further down the line. This is very different than copyrights which are no hindrance to innovation because there is not necessity of having a part of one person's novel incorporated into one's own, for example. For machinery, often times a part patented by one person is crucial to the patent of another innovator's machinery -- like a transmission on a car, which they used to not have. So, a time limit is placed on them so innovation will not be stopped for the life-time of the innovator.

 

By the way, one reason I am taking up this issue is to press the issue that parts of machines are patentable, and that software -- yes software -- is a part of a machine. The specific configurations of electrical-magnetic "bumps" are like, say, gears on a transmission, which can be patented. Too often some programmers confuse a program with an English story or article, because they can read it, forgetting that as a part of a machine, they are like miniature gears of a complex machine; and are therefore patentable. But many programmers complain that they cannot write their specific program for profit if they have to pay for other people's software inventions. This helps stress the point of the time expirations of patents. I've done some programming, and yes, it is very difficult to come up with unique ways of getting a computer to do something as a whole. If software patents lasted until the death of the software programmer and some years after his death, then no one would be able to write better programs based upon ideas made possible by the first innovator.

[Dormin111 31]

Thomas,

 

I take your point on the "ten minute case." I suppose it is similar to the notion of any other type of producer making a lot of a valuable product and then not selling the produce in time to make a profit off of it.

 

As for time limitations, I am not on the same page as you. The usual Austro-libertarian critique of the Objectivist position on IP, is that it is not a legitimate form of property but rather an artificial government grant of privileges. Regardless of the underlying justification for IP, it is difficult not to see why they reach that conclusion based on Rand's and your own  explanations. I still don't see any objective principle upon which patent lengths should be based, only a grouping of considerations left up to the discretion of state officials (patent clerks, judges?).

 

Furthermore, as far as I can tell, you seem to be using a utilitarian approach to patent lengths wherein the power of patents is determined by how much a patent will discourage future innovation. I mentioned previously that patents have these odd provisions which other property rights don't have, and this is a prime example. From a standard of individual rights, why should the inventor of an object not get a patent on the product for eternity (which he can transfer through inheritance and regular trade)? Why is it the inventor's problem if innovation is stifled in the creation of rival products? Sure, a restrictive, eternal patent wouldn't be good for the general economy, yet neither would an incompetent land manager who squanders precious resources on his property. Yet in the latter case, assuming the land was properly owned, I assume you would not suggest the state should put time limits on valuable property claims or confiscate valuable property if it isn't being used efficiently.

 

The problem gets more mucky when we try to discern where the true "source of value" is. To take your example, let's say a man invents the radio and then someone else invents an upgraded antennae for the radio. In the case of the antennae, who created the object's true source of value? The original radio inventor, without which the antennae would be useless? The new inventor? Both?

 

Finally, I can see pretty clear public choice problems with this set up. Assuming there is no iron-clad method of determining patent lengths, patent lengths and power will be left up to the judgement of some state apparatus. Considering the enormous potential power of patents, this leaves the whole process up to the sway of public interests on top of bureaucratic incompetence.

[Thomas M. Miovas Jr. 4]

First of all, Objectivism is NOT libertarianism, and the fact that libertarianism has no principles and no philosophy has been pointed out so many times that if someone states that they are  a libertarian then they are automatically not an Objectivist. They have nothing rational to say about rights whatsoever.

 

Second, I did give the objective, fact based, reason to have patents and copyrights in my opening statement on the topic -- the fact is that it takes and individual human mind thinking about reality to come up with a patentable product or an treatise or article of some type that can be copyrighted; and because he created it, he has the right to decide how it is going to be used and how it is going to be distributed.

 

Third, there is no in-perpetuity for anything invented by an individual mind because the individual does not live for an eternity. The typical expiration for copyrights is the life of the creator plus a few years to make inheritance possible. The reason patents are not handled the same way is that a patented material thing or gadget cannot be used to prevent others from improving on his work -- the original inventor has no right to stand in someone else's way for his own invention. I gave the example of one man creating a smaller part of a more complex piece of machinery, say a small gear that goes inside a automobile transmission. For a limited time, he can outright prevent the use of the gear in that manner-- he can prevent the car manufacturer from distributing his invent in the car's manufacturing, if he chooses not to let the car manufacturer reproduce his invention. But he has no right in-perpetuity to do this to anyone. He can protect his own patent, but that's it; he cannot stand in the way of someone else for an unlimited amount of time.

 

And it is your libertarian background and your refusal to think in terms of principles that makes it impossible for you to realize that neither patents nor copyrights are rights granted by the State. NO rights are granted by the State. They all stem from the nature of reality and man's nature as a rational being able to create things using his rational method and dealing with reality as a rational being.The State only protects rights, it does not grant them.

[blackdiamond 0]

 I still don't see any objective principle upon which patent lengths should be based, only a grouping of considerations left up to the discretion of state officials (patent clerks, judges?).

If I may. Isn't this the same way sentencing of a convicted person works? Doesn't the judge come up with the "lenghts" of time for him to serve in prison based on "a grouping of considerations"? (Would you say that such sentencing is therefore not based on any objective principle since it is "left up to the discretion" of judges?)

[Thomas M. Miovas Jr. 4]

Here is a debate on copyrights and patents. I have to agree with Adam Mossoff and Ayn Rand that a patent is a protection of property owned by the inventor / writer and is not something special granted by government favors. As I have argued elsewhere, the designation of a patent or a copyright is a statement before the purchase that you agree to the terms of not reproducing the inventor / writers property. It is not something super-added to the process of creating something new by special government grants.

The opposition says it is not something spurred on by the free market, but I see no flaw in the idea that one could set up a terms of use for a product stating that one can buy it but cannot reproduce it nor redistribute it without the creator's permission, which is basically what a patent or a copyright states.

[Mikee 4]

Here is a link to a critique of Rand's theory of IP rights: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1117269

[Thomas M. Miovas Jr. 4]

That's an extremely rationalistic essay trying to make arguments from definitions instead of from the facts of reality. He claims that in law there is a difference between property rights normally recognized as having possession of a material thing versus intellectual property rights which does not necessarily mean you have possession of a material thing (i.e someone else has it and you are placing restrictions on it). But the concept of rights is an abstract concept. As Adam Mossoff points out on his side of the argument above, the fact that there is property rights **at all** stems from man's rational mind, so the property rights argument, properly understood, falls under the intellectual property rights rather than the other way around. It is only the recognition that someone has to do something to earn that physical property that anyone can have any inkling that there are property rights involved in the possession of that material thing. So, property rights to land also falls under the category of having been made or created by the active human mind creating something in reality -- i.e. you have to work somehow, using your own mind, to get money to buy that land in the first place. All moral and legal possessions of property of any type derives from the fact that it took mental effort and physical follow-through to be able to have that property; thus making all types of property and intellectual property distinction.

 

The article is also rationalistic to say nothing is taken away from the creator if someone else uses the idea and doesn't compensate the creator for that idea. Every time that happens, the creator loses a sale; a sale that is his by right of having created that item in the first place. And intellectual property rights are not just based on having a good idea, like his pencil sharpening method. Having an idea per se does not grant you any sort of right as such to prevent others from using it. What it does do is identify the fact that the creator came up with an idea, and put it into practice in a material way -- like a process patent -- and because he did that, yes he does have the right to say it is his in material form and that he deserves to be paid for it. What is taken away from the creator is his exclusive right to decide who does and who does not get to use his idea in that material form exclusively because he came up with it first.

 

There is no moral argument against property rights, intellectual or material. It doesn't matter what the law says or what the legal foundations have been in the past. What matters, as I have pointed out repeatedly here is the moral right of the creator to set the terms and conditions of using his material thing. He says you cannot copy it without his permission, and that the way it is. Period. All legal matters stem from this moral argument and not vice versa. It doesn't matter what legal authority says about what previous legal precedings.The moral right of being the creator trumps the legal argument.

 

The legal foundation presenting this paper above has no moral grounding in his arguments; and it is therefore a void argument.

[Thomas M. Miovas Jr. 4]

Some other observation on the Pacific Legal Foundation article: I think it is being completely evasive in several of its examples against intellectual property rights. In the pencil example, yes, you can place restrictions on someone using your idea in material form re pencil sharpeners. I'm not sure you could do that for the old fashioned way of whittling it with a knife, since that might come under "prior art," but certainly if you make a machine that sharpens pencils, you can place restrictions on the use of that machine insofar as you choose to be paid for the use of that pencil sharpener. That is, there are several ways of making machines that sharpen pencils, there's the small hand-held device, the turning of the crank device, and the electric pencil sharpener. Obviously, those mechanical devices would not exist without the individual it took to come up with the idea and make it work in material form -- he created the pencil sharpener. And because he created that specific pencil sharpener, he has every right to say you can buy this from me under the condition that you do not make copies of my product without my permission.

 

Likewise with his bridge example. For the most part, since bridges have been around for a very long time, building a bridge across a river would fall under prior art. However, if the bridge maker can up with a unique way of supporting the bridge (say a suspension bridge versus a pillar bridge) or making a modification to the bridge (like a draw bridge), he could certainly set restrictions on the use of his product. He could not prevent others from crossing the river -- the article is quite evasive of this distinction -- but he could prevent others from using his mechanical design for that particular type of bridge. So, his market is not "people getting across the river to get to the other side" but rather "no one can use my design without my permission".

 

And if you don't understand that distinction, then why do you admire The Fountainhead where Roark made a specific claim that the builders of Cortdland violated his terms when they modified his design without his approval? or why do you admire Atlas Shrugged and Hank Rearden being upheld as the only producer who could produce Rearden Metal? I mean, just what are you getting out of these novels if not the recognition that the creator of a product has certain rights to that product?

[DonAthos 292]

I'm hesitant to start this thread on oo.net due to several issues I have had with people taking the opposite stance and due to my suspicion that even some Objectivists do not understand the nature of copyrights and patents, and hence oppose them.

 

Hi Thomas. I'm equally hesitant to reply to your post. It's a little unclear as to the nature of the "issues" that you've had with people taking an opposite stance to your own; presumably, posting here indicates that you're open to such debate/discourse, but this quoted paragraph seems to imply that you do not want it.

Anyways, here we both are, so let's make an attempt at discussion and see if any fruit grows.

I've long been troubled by the Objectivist position on IP, and over a couple threads here I've taken up the "against" position. Honestly, I'm not yet convinced for either side, though I consider myself leaning against. It could be, as you say, that I do not yet understand the nature of copyrights and patents, despite my efforts to understand them. Hopefully, if that is the case, our discussion will help me to recognize and correct my error. (And hopefully, should I be correct in my arguments, I will help you to recognize that.)

Let's start briefly here (there's too much material in this thread to reply to all of it in a go; we can explore issues as they become germane):

 

To post this message here, I have to agree to oo.net's Terms and Conditions, and everything I post here is covered by copyright law. Now, I could post some sort of Terms and Conditions of presenting an essay here of my own and say that if you read my posts, you have to agree to my terms and conditions (within the bounds of the T&C of oo.net). But that would be extremely cumbersome if we all had to sign a T&C agreement for everything we partook in or bought in our capitalist society. So, by law, it is recognized that the creator of a product has certain rights that are protected, without him having to get each end user to sign a T&C for every product he makes. Under copyrights and patents, and by buying or using the product, you basically agree not to duplicate the creator's work -- you agree to participate in that transaction without stealing from that producer. And, yes, copying and pasting or downloading without permission and then re-distributing a production digital format is a type of stealing. You are basically taking his product and claiming it as your own without proper compensation agreed to between you and the producer of that product. It's not that copyrights and patents are granted by the government, but rather a proper government recognizes the rights of the producer and defends them.

 

We're agreed that such (contractual) agreements are proper. Yet IP laws extend beyond the scope of such agreements. For instance, someone who independently invents something previously patented has not necessarily purchased anything that entails an agreement not to duplicate.

Does he not have an equal right to the fruit of his invention? How precisely is he stealing, and from whom?

[Thomas M. Miovas Jr. 4]

We're agreed that such (contractual) agreements are proper. Yet IP laws extend beyond the scope of such agreements. For instance, someone who independently invents something previously patented has not necessarily purchased anything that entails an agreement not to duplicate.

Does he not have an equal right to the fruit of his invention? How precisely is he stealing, and from whom?

 

You obviously have not read my replies, since I have already answered this issue. Preventing someone else from infringing on your patent, even though he came up with it independently, is not a punishment. It's not a punishment for the same reason that the girl you dated for three years who then falls in love with someone else is not punishing you if she marries him instead of you. And obviously, the second guy in your example seeks to prevent others from transgressing *his* intellectual property rights, since he wouldn't hesitate to file for a patent of his own.

 

The stealing comes into effect once the first guy has the sole legal and moral authority to make the product that way, and you ignore that right and proceed to make it or distribute it without his permission. The creator has absolute right to his property. Period. End of story. And his property is the material form of his idea that he made a product around. This does not prevent anyone else for understanding the idea and making his own product that is sufficiently different that he can file for his own patent. Like the examples I gave above, there are at least four ways of sharpening a pencil, and three of them I mentioned are patented products -- the little hand-held bladed thing, the turn the crank thing, and the electric thing. Each one finds a way to sharpen a pencil and each is patentable because they are sufficiently different from each other.

 

It's stealing in the same way that if you buy land and yet do not own the mineral rights to the land, and yet you dig for gold anyhow, you are violating the rights holder's rights and stealing his gold.

[Thomas M. Miovas Jr. 4]

By the way, let me ask you intellectual property rights skeptics a rhetorical question: If you are correct, and the inventor does not lose anything if someone else violates his patent and makes that product without permission, then why do you claim the second guy is losing anything when he does not get the patent because he was second? You see, it's the same issue -- either you have those rights or you don't; and the creator of a unique product has **all of the rights** to that product. Rights is the central issue here, not the material product per se that you can hold in your hands. On this forum, you have permission to post, but you do not have the right to post; the arbiter of those rights is DV who has the license for the software that makes oo.net possible. You do not have those rights unless he grants them to you. you do not lose anything by not having those rights, because it was not yours in the first place and you didn't pay for those rights.

[DonAthos 292]

Preventing someone else from infringing on your patent, even though he came up with it independently, is not a punishment. It's not a punishment for the same reason that the girl you dated for three years who then falls in love with someone else is not punishing you if she marries him instead of you. And obviously, the second guy in your example seeks to prevent others from transgressing *his* intellectual property rights, since he wouldn't hesitate to file for a patent of his own.

 

I'm not quite sure where you got the term "punishment," though I do not believe it is from what you've quoted of me. I asked you whether an "independent inventor" should have the same rights to the fruit of his invention. That is, if we're claiming that Inventor A has a right to his property through the intellectual and physical work that he performs in creating that property, then should not Inventor B have the same right to whatever property he creates through his own intellectual and physical work?

Further, I don't know why the second guy in my example necessarily seeks to prevent anyone else from doing anything in particular.

 

The stealing comes into effect once the first guy has the sole legal and moral authority to make the product that way, and you ignore that right and proceed to make it or distribute it without his permission. The creator has absolute right to his property. Period. End of story.

 

This is begging the question. I do not yet agree that Inventor B requires anybody's permission to create whatever he pleases, whether someone else has done it before or not. If I invent a pencil sharpener, I do not agree that therefore no one else in the USA (in the world? in the universe?) may morally do likewise. While a man has an absolute right to his property, I don't yet agree that the creation of a particular pencil sharpener (which is a thing, which is property) means owning pencil sharpeners as such, or the particular mechanism by which his pencils are sharpened. That is precisely what we must prove before we talk about "stealing" anything.

If I grow an ear of corn, I own an ear of corn, which is my property to dispose of as I see fit. But I do not thereby own "growing corn," and certainly I could not tell others that they may not therefore grow corn, even in an identical manner. Why precisely is building a pencil sharpener different?