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Your agreement is not necessary for me to be right. If I point out to you that 2+2=4 and even go as far as pointing out that iiii is four and that ii + ii is iiii is 4, the fact that you disagree or don't get it doesn't mean that I have not pointed out a fact of reality and it is not begging the question for me to re-assert the facts.

 

Second of all, your position is so full of contradictions, that it is one reason I choose not to argue much on oo.net any long -- it's a waste of breath in many cases. If you are going to concede, as you have, that the second guy is not being punished to not have the right to the first guys patentable product, then why the hell do you keep bringing it up as if the second guy is being drawn and quartered because he is not permitted to make his second pencil sharpener? Your stance makes no sense at all.

 

And no, the guy who patents a particular pencil sharpener does not then gain the rights to all pencil sharpeners. I've pointed out at least twice and now is the third time that there are at least three different patents for sharpening pencils mechanically.

 

Regarding growing corn, yes, that can be patentable if you come up with a unique way of doing it, say in a hydroponic plant of some sort. Planting it in the ground would come under prior art and would not be patentable. However, your whole position amounts to the following: Guy A settles onto a plot of wilderness and begins to grow corn on it, and just because he grows corn on it, thus gaining the rights to the land, he has no right to exclude anyone else, Guy B, from coming on there and planting anything else or from eating Guy A's corn. That's the nature of rights -- they are exclusive. Your right to life, liberty, property, and happiness is exclusive to you. No one else can have those in the same regard because they are your individual rights. Likewise, because you are the first person to come up with a unique product, you have exclusive rights that product. The second guy does not gain rights to it by virtue of being the second guy any more than the second guy coming onto the first guy's property has any rights associated with that land.

 

But that's all you are going to get from me. I am determined not to get into a long argument for the sake of argument with any of you any longer.

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Your agreement is not necessary for me to be right. If I point out to you that 2+2=4 and even go as far as pointing out that iiii is four and that ii + ii is iiii is 4, the fact that you disagree or don't get it doesn't mean that I have not pointed out a fact of reality and it is not begging the question for me to re-assert the facts.

 

Oh, that's fine! If you mean that you weren't attempting to make an actual argument, I'll agree, and then we can say that it was "unsubstantiated assertion" or something, rather than "begging the question."

I guess my point was that the simple repetition of your beliefs ("augmented" with bluster like "Period. End of story.") doesn't help to convince anyone of anything. It doesn't belong here, in sincere discussion (assuming that "sincere discussion" was ever your end).

 

If you are going to concede, as you have, that the second guy is not being punished to not have the right to the first guys patentable product, then why the hell do you keep bringing it up as if the second guy is being drawn and quartered because he is not permitted to make his second pencil sharpener? Your stance makes no sense at all.

 

Thomas, you do not understand my stance. That is why it appears to make no sense to you. You have come at this topic -- and replied to me -- with such hostility, that I believe you do not allow yourself to think straight. And even if I am unclear on some matters, or do contradict myself like you claim, your approach will not help to clear anything up or to elucidate the matter for me or anyone else.

I've never asked whether the second guy should "have the right to the first guys patentable product"; I've asked whether he should have the right to that which he creates himself, through his own intellectual and physical work. Rights aren't granted by government, remember, so it seems hard to me to believe that he only has the right to his creation if he receives an official government stamp at the patent office.

I've never even come close to making it sound like anyone was being "drawn and quartered." But on that subject, if the second guy is not permitted to make his pencil sharpener, and if he has the right to do it contra your position, then you are advocating the initiation of force against him. Probably not to the extent of executing him, but you know, it would be wrong nonetheless.

In any event, your habit of putting words in my mouth as a substitute for engaging with the things I actually say is both frustrating and sloppy. In your future discussions, with me or anyone else, I hope you can clean up your manner.

 

And no, the guy who patents a particular pencil sharpener does not then gain the rights to all pencil sharpeners. I've pointed out at least twice and now is the third time that there are at least three different patents for sharpening pencils mechanically.

 

It's not directly to my point, but as another important issue, can you lay down the objective requirements for making a product "sufficiently different" as to be legal? After all, in "The Nature of Government," Rand says:

 

All laws must be objective (and objectively justifiable): men must know clearly, and in advance of taking an action, what the law forbids them to do (and why), what constitutes a crime and what penalty they will incur if they commit it.

 

So if I wanted to know "clearly and in advance" prior to building a pencil sharpener whether I was going to be violating anyone else's rights thereby, how would you direct me? I can't know the opinions of one or more judges ahead of time, after all. So is there a way that I can know in advance whether my pencil sharpener is an example of my productivity and ingenuity, morally praiseworthy and thus deserving of all of the rights and profits thereof... or property theft, parasitism, morally repugnant and a crime? Or do I just have to wait and see whether there's a lawsuit?

 

Regarding growing corn, yes, that can be patentable if you come up with a unique way of doing it, say in a hydroponic plant of some sort. Planting it in the ground would come under prior art and would not be patentable.

 

Well... this "prior art" thing...

Does this mean that it happened prior to the advent of modern government, patent offices and whatnot? If so, I'll agree that it is true, but what of that? Rights such as we're discussing exist even without such government, do they not? It sounds like you're suggesting that "planting corn in the ground" otherwise ought to be patentable. That the first man to do it then had a moral right to prevent others from doing likewise (or maybe even a moral obligation), though perhaps he just lacked the means to carry it out.

But does that really make any sense to you? (And I know I'm lobbing a softball here in asking whether your own position makes sense to you, but I'm sincerely hopeful that this may spark a bit of reflection. If not in you, Thomas, then in someone more thoughtful.)

I understand we're looking on at an early bit of history, but human beings were fully human beings when they developed agriculture. They had every wit of rights at that point as we do today, and I expect that they understood in some manner what it meant to lose life, liberty or property. If you had cut off the hand of a man at that point, he would have protested, fought back. Same if you had imprisoned him, or forcibly taken the ears of corn that he had actually grown.

But if someone merely planted his own corn on his own field, even if the second man to do it, and in imitation of the first, do you suppose the "innovator" would have had any cause to protest against that?

If we're speaking of rights and their violation, then we're claiming that the innovator here has been injured by the second man planting corn. That force has been initiated against the innovator. But apart from some (I would argue "clearly wrongheaded") deduction from a mistaken understanding of property, it is hard to see that this has anything to do with the reality of the situation, either then or now.

 

However, your whole position amounts to the following: Guy A settles onto a plot of wilderness and begins to grow corn on it, and just because he grows corn on it, thus gaining the rights to the land, he has no right to exclude anyone else, Guy B, from coming on there and planting anything else or from eating Guy A's corn.

 

Perhaps unsurprisingly, this is not at all my position.

So in return, here's my shorthand for your position (and I expect you'll find it equally fair, though I'd wager that I'm yet right): people can own ideas. You'll say that this isn't what you're saying, and maybe even convince yourself of it, and yet, it is what you're saying.

 

That's the nature of rights -- they are exclusive. Your right to life, liberty, property, and happiness is exclusive to you. No one else can have those in the same regard because they are your individual rights. Likewise, because you are the first person to come up with a unique product, you have exclusive rights that product. The second guy does not gain rights to it by virtue of being the second guy any more than the second guy coming onto the first guy's property has any rights associated with that land.

 

We're agreed that actual rights are exclusive, are individual, and that this applies to "life, liberty, property, and the pursuit of happiness."

We are not agreed that "intellectual property" is an actual right, or a right of any kind apart from governmental fiat.

 

But that's all you are going to get from me. I am determined not to get into a long argument for the sake of argument with any of you any longer.

 

This is probably for the best. I don't know whether you're yet capable of productive and enjoyable discussion.

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I guess my point was that the simple repetition of your beliefs ("augmented" with bluster like "Period. End of story.") doesn't help to convince anyone of anything. It doesn't belong here, in sincere discussion (assuming that "sincere discussion" was ever your end).

 

For a lot of people, this is of course not their end, nor is reason or a free society. I think it's actually something more like repeating various religious affirmations and purging the deviationists from the group.

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I have a little bit of time on my hand, so I will answer some of the rejections to my position a bit, but I refuse to argue for the sake of arguing. No, my position is not a religious or an intrinsicist position. I had previously blocked a few people in this thread and on oo.net because they have no objective outlook on a free society. If the person creating the product for the very first time does not thereby acquire all imaginable rights to that product by the fact of creating it for the very first time, then there are no rights associated with the creation of a product whatsoever -- which is basically the position some of you are taking, which is total BS.

 

In a wilderness scenario, you gain the rights to the land by utilizing it for your own survival, and because you gain the rights by using it in such a way, you can exclude others from coming onto your land. The issue of intellectual property rights is no different. In the case whereby you create something new for the purpose of enhancing your survival -- you make a movie or an essay or a new pencil sharpener or whatever, by the mere fact of creating it makes it similar to the wilderness scenario stated above. You are in new territory and thereby gain all the rights to that product. And, yes, that means you can exclude others from making that product or make them pay you for that product before they can use it.

 

That some of you do not understand this, and that some of you are actually moderators of oo.net and do not understand that issue is one reason oo.net lacks any serious interest from those who take Objectivism seriously. There is no rationalistic argument from some prior premise that makes it "logically clear" that the one who creates it for the first time has all the rights to that product. Those facts is what gives him those rights.

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I have a little bit of time on my hand, so I will answer some of the rejections to my position a bit, but I refuse to argue for the sake of arguing.

 

Hi Thomas. If it helps you at all, it isn't necessary to announce a grand exit or re-entry with every post. So it turned out to be untrue when you said that you would "not respond further to this thread." That's fine; I think it was just your frustration speaking, and I don't account it to dishonesty.

The nature of these kinds of discussions is that people disagree on one or more points, and that's a situation that can often be frustrating. It is important to try our best, therefore, to remain polite and courteous, even while trying to sort through the matters on which we disagree.

Nobody is asking you to "argue for the sake of arguing." Presumably you have something of value to say (and that's why you started this thread to begin with). However, when you start a thread like this, you must be prepared for people to disagree with you. Advancing a claim entails something like a responsibility to support that claim. Or not? I mean, you're free to say your piece and simply walk away... but if you find that you cannot bear people disagreeing with you, and you resent the fact that they raise arguments, and you reject their attempts to sort through the issues, and you do not plan on backing up your claims... then maybe it would be for the best if you restricted yourself to your own, personal blog, where you can state your views without fear of contradiction.

 

If the person creating the product for the very first time does not thereby acquire all imaginable rights to that product by the fact of creating it for the very first time, then there are no rights associated with the creation of a product whatsoever -- which is basically the position some of you are taking, which is total BS.

 

You are equivocating on "creation of a product," and thus misrepresenting my position. Allow me to try to explain.

When you create a pencil sharpener (even if the very first pencil sharpener), I would argue that the "product" you have created is: one pencil sharpener. And yes, you do "thereby acquire all imaginable rights to that product by the fact of creating it." And thus there are absolutely "rights associated with the creation of a product." You create a pencil sharpener? You own a pencil sharpener, and the rights thereto.

But you do not therefore own "pencil sharpeners," as such. You own the specific material wealth that you have created, but you can not lay claim to owning the ideas behind it. You cannot own an idea. And if somebody else creates a pencil sharpener thereafter, you continue to own only what you yourself have created, the one pencil sharpener, and no more or less than that.

 

In a wilderness scenario, you gain the rights to the land by utilizing it for your own survival, and because you gain the rights by using it in such a way, you can exclude others from coming onto your land.

 

We agree.

 

The issue of intellectual property rights is no different.

 

We do not agree.

 

In the case whereby you create something new for the purpose of enhancing your survival -- you make a movie or an essay or a new pencil sharpener or whatever, by the mere fact of creating it makes it similar to the wilderness scenario stated above. You are in new territory and thereby gain all the rights to that product. And, yes, that means you can exclude others from making that product or make them pay you for that product before they can use it.

 

Again we must be careful with what we mean by "product." When you create a pencil sharpener, you can exclude others from using it, or you can trade with others for its use, or you can destroy it, or whatever you'd like. But that pencil sharpener is alone "the product" that you have created. It is the instance of material wealth, of private property, and it is what you own, by virtue of having created it.

By using a patch of land in your "wilderness scenario," you secure for yourself the rights to that patch of land (which entails exclusion and all the rest). But you do not therefore secure the rights to "using land" as such, not even in the same way that you are using your own land.  Your neighbors own their land just as much as you own your own, and they retain all of the same rights to the use of their land, on the same basis that you have rights to your land.  They may use their land as you may use yours.  And your use of your land does not preclude their use of their land, not even if you are the first man to plant corn (they may be the second, and you do not have the right to stop them).

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DonAthos, you are directly contradicting yourself when you claim the creator has the rights to that one thing he created but not other rights, such as the distribution rights and the reproduction rights. You cannot claim that the possessor of a material thing has the rights to that material thing, and yet the creator has no rights other than to that particular one thing that he made. You have no conception of rights, and you directly contradict a major and fundamental principle of Atlas Shrugged and therefore of Objectivism. That you are permitted to be a moderator on a forum dedicated to Objectivism and say such things without being flacked by the owner, David Veksler, or the other moderators, proves that oo.net has become completely corrupted. I was waiting to see what David Veksler has to say on the topic after calling him out on a few threads on his FaceBook pages on the same topic, but clearly, by association and by him permitting you to take such a position and his associates taking their similar position, he is not in strong disagreement with the position that the creator of a new product does not retain all the rights to that product understood as intellectual property rights.

 

It is unfortunate that I have to now disassociate myself from oo.net. I refuse to participate in a forum which does not respect my rights as the creator of my essays. They are copyrighted per the agreement when I signed up, but I cannot trust the owner nor the moderators not to take my products and do what they wish with them against my will and in violation of my rights when they take such a position. I am removing myself from oo.net, and I'm going to state that if my copyrights are not respected, you will definitely hear from me legally. My essays posted here are not to be posted anywhere else without my expressed permission in any form whatsoever.

 

David and I used to be good friends when we both lived in Dallas, but I cannot stand by the wholesale destruction of rights as proposed by many of his associates both here and on his FaceBook pages.

 

Goodbye.

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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.)

 

Thomas, what I quoted here by DonAthos is a paragraph I doubt you looked at for long. If you can't take some time to convince people who are on the fence, then there's no use preaching to the choir anyway. This is a discussion board, not mass where we're supposed to say "amen" at the end of every other sentence you say. DonAthos is taking an extremely reasonable approach to hearing you out, and definitely giving you a fair voice. We're not talking about a wild egalitarian here rejecting what you're saying simply because you support Objectivism. IP is contentious, but when reasonable people are involved, it is easily worth the time. In other words, I think you are being unreasonable, thus the discussion will seem pretty unreasonable to you.

Edited by Eiuol

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DonAthos, you are directly contradicting yourself when you claim the creator has the rights to that one thing he created but not other rights, such as the distribution rights and the reproduction rights. You cannot claim that the possessor of a material thing has the rights to that material thing, and yet the creator has no rights other than to that particular one thing that he made.

 

I fear that you confuse stating and restating your opinions with providing an argument, or otherwise appealing to reason. You claim that I contradict myself, but I do not see how (and I would sincerely like to see how, if I do contradict myself). You say I cannot claim that the (rightful) possessor (or in this case, creator) of a material thing has the rights to that material thing, but does not own the idea behind it, and does not therefore have the "right" to forbid others from building like material things. But why not?

 

You have no conception of rights, and you directly contradict a major and fundamental principle of Atlas Shrugged and therefore of Objectivism.

 

Obviously the position I'm taking directly contradicts Rand's position on intellectual property. That is in large part why I'm keen on discussing the matter, to get to the very bottom of it. I disagree that I have "no conception of rights"; at the moment, I think it is your view of rights which is flawed.  I'd be happy to be shown wrong, and I wouldn't be afraid to admit it if that happened.

 

That you are permitted to be a moderator on a forum dedicated to Objectivism and say such things without being flacked by the owner, David Veksler, or the other moderators, proves that oo.net has become completely corrupted. I was waiting to see what David Veksler has to say on the topic after calling him out on a few threads on his FaceBook pages on the same topic, but clearly, by association and by him permitting you to take such a position and his associates taking their similar position, he is not in strong disagreement with the position that the creator of a new product does not retain all the rights to that product understood as intellectual property rights.

 

I was asked to moderate here long after making clear my own ambivalence on this topic, and advancing many of the same arguments I've touched upon here across other threads. When I post, I give no thought to my status on this board, or the opinions of others, or to any consideration apart from the following: what is true? And will participating in this conversation be enjoyable?

Your attempts to bully those who disagree with you do not serve truth, and they drain all of the enjoyment out of what can and ought to otherwise be pleasant conversation. If this is representative of the best that you have to offer, and if you really mean to quit the board altogether rather than defend the positions you put forward, then I cannot say that I'm sad to see you leave.

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Whether or not Thomas plans on continuing this discussion, I'm going to take this as an opportunity to try to express my current position.  It has taken me a while to formulate, and I continue to refine it (I haven't yet found a very succinct way of communicating these thoughts), but here goes:
 
IP is contended to be a "right" among life, liberty, and etc.  So let's start with rights.
 
From "Man's Rights":
 

A “right” is a moral principle defining and sanctioning a man’s freedom of action in a social context. There is only one fundamental right (all the others are its consequences or corollaries): a man’s right to his own life. Life is a process of self-sustaining and self-generated action; the right to life means the right to engage in self-sustaining and self-generated action—which means: the freedom to take all the actions required by the nature of a rational being for the support, the furtherance, the fulfillment and the enjoyment of his own life. (Such is the meaning of the right to life, liberty and the pursuit of happiness.)

[...]

The right to life is the source of all rights—and the right to property is their only implementation. Without property rights, no other rights are possible. Since man has to sustain his life by his own effort, the man who has no right to the product of his effort has no means to sustain his life. The man who produces while others dispose of his product, is a slave.

 

Okay. So we have "right to life" as the source of rights, and "right to property" as their implementation. Regarding "property," Rand says that a man must have the right to "the product of his effort," for that is the requirement of survival.

And this makes sense, does it not? If you grow corn, but that corn is taken from you, you cannot eat it. In other words, you will starve. Having a "right to life" is meaningless if you do not likewise have the right to 1) grow corn and 2) eat the corn that you grow. You must have those "property rights," for if we grant you the "right to life" but deny you those means that are necessary to live, you will necessarily die.

On property rights, Rand continues:

 

Bear in mind that the right to property is a right to action, like all the others: it is not the right to an object, but to the action and the consequences of producing or earning that object. It is not a guarantee that a man will earn any property, but only a guarantee that he will own it if he earns it.

 

So, having a "right to life" is not a guarantee that you will own any corn, despite needing it to survive. You may well have these rights and starve nonetheless. But the "right to property" stipulates that if you earn corn (more to come on this), it is yours by right (and thus will not be taken from you by force). Further, "owning corn" means having a right to action(s) (and the "consequences of producing or earning that object"), meaning that it entails destroying the corn, selling it, eating it, bronzing it and putting it on the wall, or etc. We cannot detach one's "ownership" of the corn and one's right to these actions, for this is what we mean by ownership, and by property.

So here we are, presumably agreed with Thomas (and others) who contend that man has a right to "the product of his effort." But what precisely is "the product of his effort"? Still on property rights, Rand continues:

 

It is the right to gain, to keep, to use and to dispose of material values.

 

Property rights are rights to action (gain, keep, use, dispose) pertaining specifically to material values.

Why "material"? Because this is the implementation of man's "right to life" in the material world. Because man needs to eat corn, and cannot consist on corn's contemplation.

In Galt's Speech, Rand says:

 

Just as man can’t exist without his body, so no rights can exist without the right to translate one’s rights into reality—to think, to work and to keep the results—which means: the right of property. The modern mystics of muscle who offer you the fraudulent alternative of “human rights” versus “property rights,” as if one could exist without the other, are making a last, grotesque attempt to revive the doctrine of soul versus body. Only a ghost can exist without material property; only a slave can work with no right to the product of his effort.

 

Notice again the use of "material." When Rand speaks of "[translating] one's rights into reality," she is talking about the act of growing corn, having it, eating it. Thus "property rights" concern material values, and these alone. And here is also an insight into our earlier question: how does one "earn" corn to begin with?

It is a two-step process: 1) one must think; 2) one must work. And then one has "results" (i.e. corn) which, per property, are his by right.

Both of these steps are required to have these "results," which are material value, are wealth, and are property, and cannot exist without them. You cannot have any corn without the thought and planning required to produce it, but neither can you have any corn without the physical labor entailed in growing it. Both are required. And what then?

From "The Property Status of the Airwaves":

 

Any material element or resource which, in order to become of use or value to men, requires the application of human knowledge and effort, should be private property—by the right of those who apply the knowledge and effort.

 

Here we are again: "human knowledge and effort." "One must think" and "one must work." To what end? "Any material element or resource."

This is the source of private property, and we understand it together with the need for private property: to translate one's right to life into action, where one has a material body that needs to eat corn; the right to life means having the right to earn the corn that one needs, through one's thought and labor, and, when one has earned that corn, one has the right to the consequences of having earned that corn, which is the right of action. That is, one may eat one's corn.

But what does all of this not mean?

In growing an ear of corn, I own that corn. It is the "material element or resource" which required "the application of my knowledge and effort," which is now my private property. "My" property, by right, because I was the one who "[applied] the knowledge and effort" required to grow it.

However, if my neighbor grows an ear of corn, I do not own that ear of corn. Whose ear of corn is it, then? It is my neighbor's -- for it is he who has applied knowledge and effort! Note that is is not a question of "who innovates," but "who applies" that gives a man a right to a piece of private property.

In growing an ear of corn, even if I am the first man to do it, I do not lay some mystical claim to all ears of corn that could ever be grown, anywhere. If a thousand, or ten thousand ears of corn are grown thereafter, but I do not personally grow any more than my one ear, then I do not have any claim to any corn apart from the one I've grown through my own effort. That is alone the wealth that I have created, because again, the creation of wealth (of private property) is two-steps, neither of which can be ignored: one must think and one must work.

Contrast all of this now with Rand's claims for IP in "Patents and Copyrights":

 

What the patent and copyright laws acknowledge is the paramount role of mental effort in the production of material values; these laws protect the mind’s contribution in its purest form: the origination of an idea. The subject of patents and copyrights is intellectual property.

An idea as such cannot be protected until it has been given a material form. An invention has to be embodied in a physical model before it can be patented; a story has to be written or printed. But what the patent or copyright protects is not the physical object as such, but the idea which it embodies. By forbidding an unauthorized reproduction of the object, the law declares, in effect, that the physical labor of copying is not the source of the object’s value, that that value is created by the originator of the idea and may not be used without his consent; thus the law establishes the property right of a mind to that which it has brought into existence.

 

I believe that this is a reintroduction of the mind-body split. When Rand speaks of "the property right of a mind to that which it has brought into existence," I think that she is mistaken, and contra her own theory of rights and also property rights. I do not believe that a "mind" has a property right apart from a complete person, mind and body. I do not believe that a "mind" brings something into "existence" apart from the physical labor which is required to actually create wealth, or grow the corn that is necessary to live.

I do not believe that "mental effort" has a "paramount role...in the production of material values" if that is meant to compare it to the physical effort equally necessary to produce those selfsame material values. One may survey a plot of land and imagine a bumper crop of corn. That will earn one naught but an empty stomach, minus the physical effort required to grow that corn. And then, as one lays dying from malnutrition, we may understand what it means that one's "mental effort" had some "paramount role."

It would be equally useless to elevate physical labor over mental effort; one may work in the fields all day and all night, but without the knowledge required to grow corn, one is as dead as the reverse. But the point is that all attempts to divorce "mind and body" and protect the "product" of one versus the other is wrongheaded. Both are absolutely required, always, so long as man has to eat to survive.

And that is why we have "private property" at all -- to guarantee to man the product of his efforts (which means: thought and labor together). That product is some "material value" which is, through that effort, private property. And it belongs to the man who has applied that effort, and him alone.

***

So that is my case contra IP.

And if I'm wrong, I would love to understand how and why I am wrong (I'm sure there's plenty of potential for misstep, and I'm open to correction, but I refuse to do other than respect the verdict of my own mind). But further, I would like to see a case for IP that helps me to understand its objective implementation. Earlier in this thread, I quoted Rand on law where she said:

 

All laws must be objective (and objectively justifiable): men must know clearly, and in advance of taking an action, what the law forbids them to do (and why), what constitutes a crime and what penalty they will incur if they commit it.

 

So I would like to understand the objective case for limits on IP length (I understand that Rand said the issue was "enormously complex," which does not make me hopeful that it will conform to her explanation of "objective law" above; it sounds rather like special pleading to my ears), and what makes one invention patentable versus another, and etc.

 

If I were to invent the first pencil sharpener, and lay claim to all pencil sharpeners thereafter, despite Thomas' insistence that other "sufficiently different" pencil sharpeners may yet be invented... and if I were to claim my ownership in perpetuity, just as I would any "material value" I had crafted, to be passed down from generation to generation as being my right as the innovator... how could someone gainsay me on objective grounds while still maintaining that there is any such thing as "intellectual property"?  How does it not all become a mass of pragmatic speculation and compromise?  ("Well... I guess 150 years sounds reasonable, give or take.")  Remember we're talking about rights, here.  Life or death stuff.  We do not guess or compromise on such matters.  We take them seriously.

Earlier in this thread, someone linked to an essay by Timothy Sandefur. And though I have not yet read through that essay, I did look at it briefly and found this near the very beginning:

 

In May 2005, Leonard Peikoff’s attorneys sent a threatening letter to a graphic artist in Michigan for producing and selling T-shirts, tote bags, and other items marked with “Rand,” “Shrug,” “WWJGDITC? What Would John Galt Do In This Context?” and even the name “Kant” in a circle with a slash through it (Paul 2005).

 

Did this actually happen?  And is this consonant with the Objectivist understanding of IP?  If so, I would love for someone to run through the objective case here.  How precisely does one get from the rights Rand advocated to prohibiting someone from making a "No Kant" t-shirt?  What do we propose is "owned" in that case, by whom, and through what actual means?  And in the name of "objective law," how could someone know "clearly, and in advance" of designing such a t-shirt that it is -- and ought to be -- against the law?

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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.

 

"Briefly" then, on Adam Mossoff's presentation:

 

At root, the justification for property rights is a justification for all types of property rights, such as farms, buildings, factories, oil and gas, radio spectrum, corporations, and inventions, among others. All “property” arises from the fact that one must produce the values required for a flourishing human life.

 

While Rand routinely speaks of "material values" when discussing property, Mossoff drops the word "material" and just speaks of "values." I'm sure that's just an oversight.

 

Rand’s ethical theory makes explicit why property rights have never been limited to just physical objects...

 

Or perhaps not.

 

...the genius and success of Anglo-American property law is that it recognized that property rights secure values, not physical objects. American courts have long recognized that “property ... may be violated without the physical taking of property” given any act that “destroys it or its value.” (In re Jacobs, 98 N.Y. 98, 105 (1885).) This is the meaning of the natural rights metaphor that property rights secure the fruits—i.e., the use and profits—of one’s labors.

 

"Any act" that destroys the "value" of property (which here means "any value," and not just material values)? Is this really what he's contending?

 

As another court explained, “A man may be deprived of his property … without its being seized or physically destroyed, or taken from his possession.” (Wynehamer v. People, 13 N.Y. 378, 433 (1856).)

For this reason, American law justly secures property rights in novel and useful inventions—securing the right to make, use and profit from the value created by an inventor’s productive labors. Patent law thus secures the same rights in inventions as it does in securing all values created by all types of productive labors.

 

"All values." "All types of productive labors" (mental or physical, presumably). And we have rights now extending not only to eating corn, but to "profit from the value" of one's growing corn, or coming to understand that corn may be grown (which is a "type of productive labor") whether or not one actually grows the corn which is necessary to survive.

So.

When one builds a pencil sharpener, one not only has rights to that pencil sharpener (to destroy, to sell, etc.) but to its "value" and to its "profits." And "any act" which destroys the "value" of that pencil sharpener (even if leaving the pencil sharpener in tact, in possession of the owner, and free to sharpen pencils) is accounted "depriving the man of his property"?

But let us say that a man builds the first ever pencil sharpener, and it has "great value" in that it is the first and there is a huge market for such things, and many people are willing and wanting to purchase one. This is the "value" that we contend we are protecting (and thus the "property," this "value" being a non-material value) with a patent, is it not?

Yet if someone else comes along with a "sufficiently different" pencil sharpener such that defenders of IP would deem it acceptable (by some means, to be determined), our innovator may well lose his market entirely. Wouldn't that be one act (of "any") that would destroy that "great value" that the pencil sharpener originally held? Isn't that therefore a deprivation of property? And shouldn't that, therefore, be illegal?

And indeed, as Mossoff sources many of his claims in the history of laws, it seems to me (though without being able to say for certain) that many sorts of exclusionary monopolies can be or have been sourced in that very sort of argument. If I own the only pizza place in town, I could certainly make the case that a rival establishment opening up across the street would harm my business (i.e. "the value" that I supposedly own, apart from the material objects alone and my right to dispose of them, in the profits that I expected to reap, and the resale value of my business should I ever decide to sell it). And thus, per this reasoning, to open such a rival pizza place would be an assault against my property, my rights, my life.

"Value" in this sense is not material, which is a word Rand was wise to use when discussing property, and contra Mossoff. "Value" in this sense is not ownable. It is not property. And it therefore ought not be protected by law, lest we allow the law to turn on its purpose and initiate the use of force, rather than uphold men's actual rights.

Edited by DonAthos

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This is an interesting conversation and thanks very my DA for putting down your thoughts here as I was able to make use of this to sort out some of my own ideas in this area.

 

I would think that an idea is not property until one makes it property.

 

In the case of growing corn, you might have taught yourself how to do this, and somebody else might have done, in parallel, the same. All of the ideas in your head are not property.

 

However, you may choose to make a product, which is some tangible thing (even some bits on a server), and sell that thing (for any price, including no price). In the process of making an idea a product, you need to go through roughly the same process you go through to make any other product, such as package it somehow, and legally define it. Property rights don't exist without a proper government to protect them. We have title deeds to our homes and other government documents to establish our ownership of things, and we have hearsay ("he stole the newspaper off my front porch!") and courts to figure out who is telling the truth in either case.

 

But the key here is to understand that property rights is a concept that only exists within the context of a proper government. There are no "rights" on a desert island when it's just you. They don't come into being until there is a government. Concepts are not as Aristotle thought them, intrinsic in the object. They exist in reality, and within a context.

 

So in the case of growing corn, you may want to sell what's in your head: your ideas of how to grow corn. This would be no different than selling part of your own land: you need to define the parcel of land, register the parcel with the government, etc. The government will in turn ask that you make sure (within some reasonable threshold) that your parcel of land is indeed yours, that you have full ownership, etc. etc. Then you may sell it.

 

Yes, you owned the parcel before, but not until you register it with the government (who in turn imposes various practical rules that allow your rights to be realized) can you sell it as a separate product.

 

In the realm of ideas, the laws surrounding copyright, patents, etc. are those "practical rules" that turn an idea, potentially, into a product. The government may reject your request on the grounds that it could not adequately protect your property, or if it (immediately) becomes aware that your property is not yours, is not valid, etc.

 

With that, the laws for copyrights and patents (including the various hoops one jumps through) can be justified within the context of a proper government.

 

Back to the analogy of growing corn, then, you might have the idea. It's just sitting in your head. It's not a product. It's not something you are offering to the marketplace for sale (including for no price, i.e. claiming it).

 

Step 2, you decide to offer your idea for sale. Doing so means you want the government to protect your property. In doing that, the government may impose rules upon you (viz. copyrights) and/or may even make you do other things that enable the government to protect you such as describing your product exactly (viz. a patent).

 

Now, I agree with AR that this issue is "enormously complex" at the margin. Again, these are implementation details. The core principles at work here, however, is that you have the right to your own property and that property is a concept that exists within the context of some mortal government, not some realm of God in the heavens. Whereas the essential properties of property will not change, the specific aspects may based on technology, context, etc.

 

Anyhow... I'm going to stop now... this is a really interesting conversation though...

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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?

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.

I don't have a full-fledged defense of IP to lay out here, but I would like to address this issue of the innocent independent inventor that is raised both here and in the contra-IP essay linked to earlier. In this situation, inventor B has, through his own independent intellectual and physical work, produced something that happens to fall under a patent owned by inventor A.

I think we can shed a little light on this by considering a similar situation in the case of physical property, say unowned land. Consider a situation where individual A begins to develop some parcel of unowned land and, because of this development, attains the title to that land from the government. Following this, individual B happens upon some portion of the land (perhaps a portion that A has not gotten to yet), thinks it is unowned, and begins to develop it himself. He goes to the government to get the title, but discovers that the land is already owned. All his efforts have been wasted, and he is not entitled to any profits from the land development he has done. This is a case where both individuals have exerted the same types of intellectual and physical efforts by which one comes to own land, but (due to the 'first to file' type system) only the first individual owns land at the end of the day. Would we say that individual B has been wronged by this system?

Certainly, the fact that individual B has expended mental and physical effort, yet does not end up with the resulting property, is unfortunate. However, does this mean that the conception of property here is faulty? Or is it simply an unavoidable outcome resulting from the necessity for having some objective 'first to file' system?

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I don't have a full-fledged defense of IP to lay out here, but I would like to address this issue of the innocent independent inventor that is raised both here and in the contra-IP essay linked to earlier. In this situation, inventor B has, through his own independent intellectual and physical work, produced something that happens to fall under a patent owned by inventor A.

I think we can shed a little light on this by considering a similar situation in the case of physical property, say unowned land. Consider a situation where individual A begins to develop some parcel of unowned land and, because of this development, attains the title to that land from the government. Following this, individual B happens upon some portion of the land (perhaps a portion that A has not gotten to yet), thinks it is unowned, and begins to develop it himself. He goes to the government to get the title, but discovers that the land is already owned. All his efforts have been wasted, and he is not entitled to any profits from the land development he has done. This is a case where both individuals have exerted the same types of intellectual and physical efforts by which one comes to own land, but (due to the 'first to file' type system) only the first individual owns land at the end of the day. Would we say that individual B has been wronged by this system?

 

Possibly?

I'm trying to visualize something closer to an actual scenario here, because I suspect that with this sort of thing that a lot would rest on the specific details, but here are some general first impressions:

When you describe your situation thus -- "individual A begins to develop some parcel of unowned land" -- I wonder how we initially regard the "parcel" to which A may lay claim. For instance, if I'm working at one edge of a forest and have begun to develop it, does that mean that the "parcel of unowned land" with which I'm working now encompasses the entire forest? Is it only the edge? How far can I extend my claim beyond that area which is actually, immediately under development? So far that someone else may start work in the same general area without any means to recognize that there is a prior claimant to that same land? Claiming the forest, or even the edge of the forest, on the strength of cutting down one tree doesn't satisfy me.

Ultimately we're agreed that claiming property (and especially land) requires giving some sort of notice to "society." (Else what could we mean by "claim"?) I suspect that claiming a plot of land either requires -- or ought to require -- some sort of reasonable (probably visual) cue, especially for your immediate neighbors, being those likeliest to make a competing claim. For instance, I don't know whether it's reasonably "your land" at all before you've fenced off the area and provided for those kinds of markers.

We should also recognize that property claims (and rights more generally) exist without a particular government's stamp of approval. I know that you're introducing "titles," which might suppose preportioned allotments of land for sale (and, it seems to me, might further suppose that the government somehow initially owns all of the "unowned land," entitling it to portion it in some manner and sell it), but even were we in a case where there were no "titles" as such, a man should be able to make an understandable claim on a portion of land on the strength of his individual property right; on the strength of his actual development.

So when we speak of such rights, and competing claims, is it truly a matter of "first to file" with a given governmental agency? Or is it the first to act, in reality? For instance, suppose we're agreed that a given property title concerns an entire forest, and that title reasonably belongs to the first man to cut down a tree in that forest. Individual A cuts down a tree at 9am and sets off, walking to his governmental office. Individual B cuts down a tree at 10am and begins to drive to his governmental office, getting there first. Assuming all of this information is available, who has the property right? I would say Individual A.

But okay. Let's suppose that we take seriously this idea that these rights exist even without government's say so, and that both men, A and B, do not feel any particular need to rush to get an official "title" to the property that is already theirs (or so they think) by right, by virtue of their efforts.

They show up to the governmental office a year after the fact, A having built his home on the western edge of the forest, and B having built his home on the eastern edge of the forest. They explain that they'd each been working in ignorance of the other, but both claim the entire forest on the strength of their development. (And indeed, for some reason that's how we have the title drawn up...) They're both completely honest, and have documented their efforts, and it turns out that A cut down his tree at 9 and B cut down his tree at 10. Well, what then?

If we said that A therefore owned the entire forest, and B's property (and perhaps everything he had produced of it throughout that year) were thus forfeit to A, would you say "that individual B has been wronged by this system"?

I believe I would. It would seem to me in such a circumstance, our preportioned title notwithstanding, that we are actually dealing with two properties and not one. Or if not -- if that is deemed an unacceptable response for some reason, akin to Solomon's suggestion of splitting of the baby -- then I think that I would require one actor to compensate the other for his valuable developments in absorbing the entire property. Or something like that, though I'm no judge (and neither do I aspire to it). I think I would still recognize a property right of some kind for Individual B, on the strength of his efforts and actions and that which he has produced. What do you think? Am I wrong here?  (Does this shed any light?  Or have I further confused things in my reply?)

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Tell me if this is not an over-simplistic solution, but perhaps the plaintiff should have to prove that the defendant actually derived his IP from that of the plaintiff?

 

In other words, I invent a way to grow corn and publish (register) my invention as mine. Then person B is caught using the exact same technique. If I can prove that Person B learned about this technique directly or indirectly from me then I can sue and win. If I cannot, then I have no case.

 

This seems like it can work, and it seems like a somewhat plausible way to deal with at least some cases. Clearly things like drugs are pretty clear-cut since they are very complicated formulas that would be easily proven one way or another. This is a no-brainer for copyrights. Very basic "ideas" would be more problematic, but they are problematic regardless (patents have the "obviousness" clause but the USPTO doesn't always implement it well).

 

I think this addresses the "first to file" problem as well. A subsequent duplicate invention filed would serve to invalidate the original invention since "obviousness" would be proven by a concrete example (and/or this might give rise to co-inventors making a contract between them, etc.).

 

Take two examples.

 

First, I invent, "A system and method to allow you to bullishit about Objectivism all day instead of doing your real work". I feel so proud of my invention that I file a patent on it and the USPTO sadly grants my patent. Then the USPTO gets a bunch of other duplicate applications, and I fail to prove that all of those other inventors ripped off my idea--so they just had the same idea themselves independent of my idea. This in effect proves that my invention is too "obvious" to be a valid patent, and I both lose my case and lose my patent (which I understand sorta happens now too--if you don't win, your patent becomes effectively inert).

 

Second, I invent a complicated formula to cure cancer. Somebody else comes up with the same idea. (Both of us, presumably, after many years of work in this case). I might confer with this gentleman, find out that he in fact did the same thing I did without my help, and we can agree to not commit "mutually assured destruction" by both of us filing and co-market our product, both of us co-owning the IP (or he could buy me out, or with some other business contract, ad infinitum).

 

This seems like an equitable system... what am I missing?

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I don't have a full-fledged defense of IP to lay out here...

 

There are two more things I wish to add.

(And Crow? I'll address your posts hopefully soon-ish, though I cannot make promises.)

#1) I recognize that my reply to your post may be a bit "non-responsive" in taking the scenario too literally, framing my answers too specifically...? I don't know. If the idea is just that sometimes it matters to be first -- that sometimes being first has real consequences, and is preferable to being second -- then I agree.

Whether we can construct a land-grab scenario that maps well onto these sorts of claims for IP, I don't know. Though this may be begging the question, I think that "ideas" or IP and "material values" or actual property are different in reality and must be treated differently, and I don't know that even a perfectly framed scenario in which "being first" to land is wonderful, and "being second" is a catastrophe, will necessarily illuminate being first to have an idea versus being second. But we can certainly continue to discuss the matter, if you believe that it will help.  I'm willing to follow you down whichever rabbit hole you'd prefer.

#2) I know that you don't have a "full-fledged defense of IP," but do you have a partially fledged one? Or one that's a bit fledged? I'd like to hear your take.

In light of my arguments, Thomas said that I have "no conception of rights." Well that's a scary idea! So I've laid out my understanding of several quotes of Rand's pertaining to rights, and specifically to property rights, and how I view them as contradicting her position on IP. From all that I've seen on this board, I respect your mind to a high degree, and I trust you as being very knowledgeable and thoughtful.

So what do you make of the case that I've set forward? Do you see specific places where I'm getting "rights" or anything else wrong? Identifiable missteps?

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Tell me if this is not an over-simplistic solution, but perhaps the plaintiff should have to prove that the defendant actually derived his IP from that of the plaintiff?

 

In other words, I invent a way to grow corn and publish (register) my invention as mine. Then person B is caught using the exact same technique. If I can prove that Person B learned about this technique directly or indirectly from me then I can sue and win. If I cannot, then I have no case.

 

This seems like it can work, and it seems like a somewhat plausible way to deal with at least some cases. Clearly things like drugs are pretty clear-cut since they are very complicated formulas that would be easily proven one way or another. This is a no-brainer for copyrights. Very basic "ideas" would be more problematic, but they are problematic regardless (patents have the "obviousness" clause but the USPTO doesn't always implement it well).

 

I think this addresses the "first to file" problem as well. A subsequent duplicate invention filed would serve to invalidate the original invention since "obviousness" would be proven by a concrete example (and/or this might give rise to co-inventors making a contract between them, etc)

 

Why is "first to file" a problem that needs to be fixed? Part of competition involves competing to come up with ideas first. It is impossible for the government to secure rights to intellectual property if they aren't aware of it. And part of securing intellectual rights entails protecting the first from the second. The second doesn't have any rights for a potential or an idea in the process of being materialized, rights only pertain to a final product or an idea actualized.

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Whether we can construct a land-grab scenario that maps well onto these sorts of claims for IP, I don't know. Though this may be begging the question, I think that "ideas" or IP and "material values" or actual property are different in reality and must be treated differently, and I don't know that even a perfectly framed scenario in which "being first" to land is wonderful, and "being second" is a catastrophe, will necessarily illuminate being first to have an idea versus being second. But we can certainly continue to discuss the matter, if you believe that it will help.  I'm willing to follow you down whichever rabbit hole you'd prefer.

The point of the example is simply to illustrate that exerting mental and physical effort on what is already someone else's property doesn't make it yours. The example was a bit contorted and historical because, quite frankly, we don't really have unowned land in America anymore. When we did have unowned land out West, we had a system that avoided many of the problems that you point to in your previous post (how do we decide how much land a person reasonably owns from developing some of it, do they need to fence it off). Their solution was simply to standardize the area of land that an individual or family could lay claim to, based on (I think) their judgement of about how much land one family could reasonably farm (160 acres). I think you also had to fence it off, though I'm not sure about that.

If we drop the 'innocent,' such that person B doesn't have to think the land is unowned, it's much easier to construct a current example. I can't take my neighbor's lawn, which he lets grow wild without any maintinence, by waiting until he goes on vacation and then planting grass and flowerbeds over there. The point is simply that if we acknowledge a preexisting property right in something (land, a particular design), no one else can gain that same property right simply because they exerted effort and created or improved something.

Obviously any analogy to physical property introduces the rivalrous aspect of physical property, but that doesn't mean we can't draw lessons from physical property. We simply need to tread with caution to make sure the rivalrous nature isn't essential to the argument. Here, I don't think it is. So long as we recognize a property right in something, that property right cannot be usurped simply through exerting effort. Thus, we don't need to be concerned about the innocent inventor from a justice standpoint.

Hopefully I'll have time to put down some more thoughts about IP later, that's all I have time for now.

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Why is "first to file" a problem that needs to be fixed? Part of competition involves competing to come up with ideas first. It is impossible for the government to secure rights to intellectual property if they aren't aware of it. And part of securing intellectual rights entails protecting the first from the second. The second doesn't have any rights for a potential or an idea in the process of being materialized, rights only pertain to a final product or an idea actualized.

 

Well, perhaps you should read the above thread (again?)...

 

The principle involved here is that you should own the fruits of your own labor. If you invented something, you should own it. If you took it from somebody else, you should not.

 

This, however, brings up an edge case: what if you invented something, wholly independently, that somebody, unbeknownst to you, had invented before? You in fact invented something, and did so without anybody's help. It would follow, therefore, that you should be able to own the fruits of your own labor, and that a proper government should protect your rights in that regard.

 

Keep in mind here we are dealing with the case of an invention being re-invented (or invented in parallel) without knowledge of each other. This is probably common in many areas (viz. drugs) and less common in other areas (viz. the patent on Google [if there was one]). In the latter case, the product is universally known, and I think one could make the case that there'd be a point where anybody claiming to have invented your invention could not have done so without knowing about your invention. In this "first to file" would rule the day.

 

The egregious problems in the system today involve arcane bits of technology that are the realm of "trolls" who lie in wait for new inventors to invent their (probably far too obvious) invention, and sue them for use of IP that they themselves created. To me, the primary driver should be the true inventor of the technology. People should have the rights to the fruits of their own labor.

 

Also, competition, while a common by-product of a free society, is not a primary value...

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DA in #31

 

When you create a pencil sharpener (even if the very first pencil sharpener), I would argue that the "product" you have created is: one pencil sharpener. And yes, you do "thereby acquire all imaginable rights to that product by the fact of creating it." And thus there are absolutely "rights associated with the creation of a product." You create a pencil sharpener? You own a pencil sharpener, and the rights thereto.

But you do not therefore own "pencil sharpeners," as such. You own the specific material wealth that you have created, but you can not lay claim to owning the ideas behind it. You cannot own an idea. And if somebody else creates a pencil sharpener thereafter, you continue to own only what you yourself have created, the one pencil sharpener, and no more or less than that.

 

 

 

 

This example seems to me to suggest that your line of reasoning sees no distinction between subsistent level crop production and technological applications in a division of labor society. While both(crops as food and applications of technology as property) can be moral applications of the principle of property rights, I do not see them as analogous, do you ?

Edited by tadmjones

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If we drop the 'innocent,' such that person B doesn't have to think the land is unowned, it's much easier to construct a current example. I can't take my neighbor's lawn, which he lets grow wild without any maintinence, by waiting until he goes on vacation and then planting grass and flowerbeds over there.

 

Just to provide a common ground, if it's necessary to say so, I agree that you cannot take your neighbor's lawn in that manner.

 

The point is simply that if we acknowledge a preexisting property right in something (land, a particular design), no one else can gain that same property right simply because they exerted effort and created or improved something.

Obviously any analogy to physical property introduces the rivalrous aspect of physical property, but that doesn't mean we can't draw lessons from physical property. We simply need to tread with caution to make sure the rivalrous nature isn't essential to the argument. Here, I don't think it is. So long as we recognize a property right in something, that property right cannot be usurped simply through exerting effort. Thus, we don't need to be concerned about the innocent inventor from a justice standpoint.

 

You're quite satisfied on the question of justice?

I mean, you're right: all depends on whether we ultimately agree that ideas can be property (or however you'd feel comfortable describing whatever it is that is "owned" per IP). But I yet think that the question of justice may be instructive here, and point to a real difference between actual, real, sourced-in-rights property and IP, which I argue is not a right, not property, but is the creation of governmental fiat and the initiation of force. Thus the attempt to treat it as a proper right will lead to all sorts of poor outcomes with respect to justice and everything else. (Or maybe I just mean to appeal to your emotion.)

Here's my own example. I recognize that it's a bit fantastical (as is my wont), but I'm looking to make a rhetorical point, and I hope to get to the heart of the matter:

Suppose a small society removed from the larger world in every practical manner. It could be a Blue Lagoon type scenario, or perhaps it's some group in Appalachia or wherever we'd recognize "the wild." But it is a society such that it exists within the world, but has no current communication with that larger world, or its patent offices.

People within this society "invent" or "innovate" or otherwise produce things, as they need to do to survive and flourish. We may imagine that everything thus produced has been previously innovated by someone in the larger world, yet they are "innocent" in that they are ignorant of this preexisting innovation. This is a people who observe property rights in that they maintain and respect separate homes, tools, food, and etc., though they have not developed what we would otherwise recognize as IP, such as patents, trademarks and the like.

Now imagine that this society is discovered by the larger world, and people within the larger world who own the intellectual property rights to much of the actual, material property created within this society claim that their rights have thus been violated.

A judge hears this case and agrees. He orders the people of this society stripped of "their property" and given to those who hold the IP rights to their wealth.

You would hold that the people of this society had "initiated the use of force" against people they had never met, by producing things they had no way of knowing had been previously constructed, let alone understanding that such should somehow preclude them from building those things that they need? You would recognize this as "justice"?

On the question of whether analogies between IP and physical property are proper generally, I wonder what the position you appear to be putting forward here portends for issues such as expiration/time limits on patents. If this form holds -- "So long as we recognize a property right in something..." -- could I complete it like this?

So long as we recognize a property right in something, that property right does not expire over time.

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This example seems to me to suggest that your line of reasoning sees no distinction between subsistent level crop production and technological applications in a division of labor society. While both(crops as food and applications of technology as property) can be moral applications of the principle of property rights, I do not see them as analogous, do you ?

 

I think that Rand's case does not admit such a distinction:

 

What the patent and copyright laws acknowledge is the paramount role of mental effort in the production of material values; these laws protect the mind’s contribution in its purest form: the origination of an idea. The subject of patents and copyrights is intellectual property.

 

Whether on the farm or in the factory, B.C. or A.D., I expect that mental effort should hold the same "paramount role...in the production of material values," and thus be worthy of the same protection, whatever we ultimately decide that to be.

Further, there is Mossoff's case:

 

Patent law thus secures the same rights in inventions as it does in securing all values created by all types of productive labors.

 

If we seek to secure rights pertaining to "all values created by all types of productive labors," then, there again, I don't find a principled distinction accounting to the level of technology involved.

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I think that Rand's case does not admit such a distinction:

 

 

Whether on the farm or in the factory, B.C. or A.D., I expect that mental effort should hold the same "paramount role...in the production of material values," and thus be worthy of the same protection, whatever we ultimately decide that to be.

Further, there is Mossoff's case:

 

 

If we seek to secure rights pertaining to "all values created by all types of productive labors," then, there again, I don't find a principled distinction accounting to the level of technology involved.

So rightfully possessing and consuming a particular apple is analogous to the vulcanization of rubber?

Edited by tadmjones

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So rightfully possessing and consuming a particular apple is analogous to the vulcanization of rubber?

 

I may be confused... but are you asking me to defend the positions that I'm currently questioning?

 

Because I don't yet find owning an apple to be particularly "analogous" to claiming ownership over a process like the vulcanization of rubber.  I consider the first to be a proper instance of private property, as I've tried to demonstrate in earlier posts in this thread, while I disagree that the latter is.  I think that it is improper to treat an idea as property, for the reasons I've provided.

 

But yes, if one considers Rand's essay on patents and copyrights, or Mossoff's linked argument, or even more recently Dante's specific reference to such "analogies," then yes, I think that the general contention is that owning an apple is analogous to owning vulcanization.

 

Here, again, is Mossoff, making this explicit:

 

At root, the justification for property rights is a justification for all types of property rights, such as farms, buildings, factories, oil and gas, radio spectrum, corporations, and inventions, among others. All “property” arises from the fact that one must produce the values required for a flourishing human life.

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You would hold that the people of this society had "initiated the use of force" against people they had never met, by producing things they had no way of knowing had been previously constructed, let alone understanding that such should somehow preclude them from building those things that they need? You would recognize this as "justice"?

My thinking is that if the isolated society and the larger world society consist of reasonable people, they will work something out, on the premise that both societies agree on IP. You don't have to presume that there will need to be some legal proceeding to determine who came first. In your scenario, it's a borderline case where the usual rules and precedents don't apply. Because of isolation, I doubt there would be any technological overlap, though.

 

I want to add that one has to define the extent in which a right applies. Putting your foot on Mars and creating a martian home doesn't make all of Mars yours. Some reasonable standard must be set, like Dante's example of 160 acres being reasonable of the extent that a family can farm. IP isn't identical, to be sure, but you'd need to limit that too. Inventing a pencil sharpener won't mean that with IP, you will own all pencil sharpeners. You could (and should) explicitly limit the extent which this applies, by considering just to what extent you developed methods and ideas to implement *this* type of pencil sharpener. Your arguments seem to be about realistic implementation, not exactly the legitimacy of intellectual property.

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