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In Defense of U.S. Patent 5,443,036.

 

In a recent post, I introduced this example of a real life patent, not for any particular rhetorical purpose, honestly, but because I had stumbled upon it, and it really worked me up... so I decided to vent.  When I wrote that post, I knew that someone would take it amiss and accuse me of creating a strawman, and Eiuol did, and I responded, and hopefully I made the point that while it is admittedly a strawman in some respects, it is not a strawman in other, crucial respects.  Namely that, being an honest-to-God patent (and from the none-too-distant past), it is representative of what some actual people think IP ought to look like.  And not just any people, but people in a position to make these kinds of actual decisions.  This is a little glimpse into the reality of IP -- and, I should note, it is an unavoidable reality so long as we are unable to articulate any objective standards by which IP ought to be implemented.

 

But more to the point, Eiuol's specific reaction has led me to wonder.  Note some of the language that he used to describe this patent: he called it "a poor application of IP"; a "terrible application of IP"; he drew implicit comparisons between this patent as an example of IP to the regimes of folks like Stalin, Pol Pot, Mao, and the Ayatollah Khomeini, as examples of governance.  Pretty harsh stuff.  While initially I was just excited, because I hoped that this could lead to insight into Eiuol's position on IP (for after all, if he calls this patent "terrible," he should have some idea of why... right?), I've been mulling it over, and...

 

Is this patent really that bad?

 

I mean, yes.  It is really absurd and asinine.  But that's coming from the point of view of someone who doesn't understand the nature of the arguments for IP in the first place.  But what of Eiuol -- and presumably others like him -- who yet seem convinced that there are "positive and just applications of IP"?  I've asked Eiuol to try to explain the difference between these and the "terrible" IP applications like this patent, but now I ask myself: is there any fundamental difference at all?

 

Perhaps there is, perhaps there is not, but for now I shall attempt to make a brief case to defend this (unfairly?) maligned patent.

 

Please consider:

 

Here are a few examples of patents that have been provided throughout the thread by those who have argued against my position.  Presumably they all make the cut as being "positive and just":

 

* a pencil sharpener

* growing corn in a "hydroponic plant of some sort"

* the vulcanization of rubber

 

Contrasting against them, we have U.S. Patent 5,443,036 -- "method of exercising a cat."

 

Now, let us start with Adam Mossoff's claims, which he sources in the writings of Ayn Rand.  (As further pedigree, Mossoff's position was endorsed by this thread's OP, Thomas.)  Mossoff writes that "property rights secure values, not physical objects."  Which kinds of values?  "[A]ll values created by all types of productive labors."  Thus our first question ought to be, does this "method of exercising a cat" represent a value created by productive labor?

 

Indubitably it does.  As one's cat may be a value to a man, so will be the health of that cat, and thus a new method of exercising that cat.  But the process of exercising one's cat is not automatic; man is not born with that innate knowledge.  He must perform mental labor to come up with this particular exercise method, or any other, and as IP laws "protect the mind’s contribution in its purest form," so too should a patent protect the rights of the man who created this exercise method.  Thus, this is a "positive and just" application of IP.

 

But let us look further at a comparison between this and the other "positive and just" applications listed above.  For after all, what is "vulcanization"?  Is it not a "method of strengthening rubber"?  (Or something like that, at least! :) )  Why should a method of strengthening rubber be regarded as a valuable product of the mind, but not a method of exercising one's pet?  And what about growing corn in a hydroponic plant?  Unless I much mistake, that is clearly a "method of growing corn."

 

The question of the pencil sharpener led me to wonder for a few minutes whether patents properly protect the pattern of an object, or a method of doing something (as in the above examples), and to sort that out for myself, I developed a small hypothetical.  Suppose two independent inventors, A & B, simultaneously working on building a pencil sharpener without knowledge of the other.  They submit claims to the patent office, again in mutual ignorance, and build up their stock and begin to sell wares.  The patent office eventually awards the patent to Inventor A (as he was five minutes earlier to the office), and thus Inventor B is completely out of luck, stuck with his warehouse full of unsellable wares.  Or is he?

 

What if he were to repackage his "pencil sharpeners" as paperweights?  Now, never mind that a judge probably would not allow this to happen if suit were brought, and would issue an injunction on the basis that, once people had this "paperweight" in their homes, they would simply use it as a pencil sharpener.  But suppose that we could count on people to be honest and only use this repurposed paperweight as a paperweight.  Would there then be any reason to restrict Inventor B from selling his stock?  I don't think so.  So long as people did not use the paperweight to sharpen pencils -- presumably they could do just about anything else with it -- it should not run afoul of Inventor A's patent, or his rights.  Right?

 

If that's the case, then isn't Inventor A's patent on a "pencil sharpener" really a patent on a "method of sharpening pencils"?  I think so.

 

In all cases, then, where we believe that we've found some "positive and just" application of IP, I think that we have a case very similar to the "method of exercising a cat."  Why should we prefer methods for strengthening rubber, growing corn, or sharpening pencils, to a method of exercise?  Does it require less mental labor to develop?  (And even if it did, would that matter in principle?)  Is it unworthy in some other fundamental way?  Somehow funny because it involves a cat?  Tell that to the thousands and thousands of cat lovers; there is obviously great value at stake here.  Very valuable property.

 

I imagine that someone might try to draw a distinction between what appears to have industrial or commercial uses, and that which does not.  But it might be errant bias to assume that there is no possible commercial application for cat exercise, whether that's a sensible distinction to try to draw in the first place.

 

No, it seems like this is a proper patent, both on the theoretical basis that Adam Mossoff provides and also compared to other patents that (presumably) we would also consider proper.

 

So, given that I have admitted to violating this patent while it was active, where does this leave me?  It leaves me as a thief.  A rights violator.  An initiator of the use of physical force.  And let us remember what Rand had to say about that:

 

Whatever may be open to disagreement, there is one act of evil that may not, the act that no man may commit against others and no man may sanction or forgive. So long as men desire to live together, no man may initiate—do you hear me? no man may start—the use of physical force against others.

 

To interpose the threat of physical destruction between a man and his perception of reality, is to negate and paralyze his means of survival; to force him to act against his own judgment, is like forcing him to act against his own sight. Whoever, to whatever purpose or extent, initiates the use of force, is a killer acting on the premise of death in a manner wider than murder: the premise of destroying man’s capacity to live.

 

This is the very thing I did by using a laser pointer to play with my cat.  No man may sanction or forgive my foul crime, when I interposed the threat of physical destruction between the man who rightfully earned this patent -- that is, the right to tell me, and every other human being on the face of the planet with a cat that we may not use a laser pointer as part of our play together, without permission -- and his own judgment.  I was like a killer acting on the premise of death.

 

Now sure, I was in complete ignorance of this patent.  I never should have guessed that any such thing was even possible.  But now, let's reflect...

 

If we're agreed that we may patent "method," such as a "method for strengthening rubber" or a "method of exercising a cat," or etc. (and quite clearly we may patent these things, at least as things currently stand, and also according to the rationale offered by Mossoff and others)...

 

Isn't it the case that we do nothing at all, except that we do it by some "method"?  Playing or exercising with one's pets.  Sharpening one's writing utensils.  Growing food to eat.  Every particular action can be understood as belonging to some wider "method."  And if such methods can be owned (as is just, for after all, they represent a value borne of a productive labor), then mustn't we be concerned with everything that we do -- every single action that we take -- that we might be infringing upon someone else's justly held property, even if in ignorance?

 

I think that if I could innocently be infringing upon this cat-exercise patent -- an "innocent invention" (if it was; but no, I'm sure I copied someone else's example or suggestion) that yet excuses me not at all, per the arguments raised in this thread -- then anyone at any time might be infringing upon others' rights.  And thus, shouldn't we all be scouring the granted patents routinely, and struggling to keep them all in mind that we might not accidentally misstep?

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On "Copying."
 
Ayn Rand from "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.

 

Throughout this thread, I believe I've highlighted several apparent inconsistencies between Rand's arguments in this essay regarding IP and her other positions on (among other things), property, rights, force, and the mind-body split.

One aspect that I'd like to briefly examine is the claim that "the physical labor of copying is not the source of [an] object's value." Now, she means this in contrast to the "mental labor" of innovation, which I hold is a remnant of the mind-body split -- for there is no wealth creation at all without both mental and physical labor, and minds do not themselves bring property "into existence" apart from bodies, and the physical labor that they must provide. And further, bodies do not and cannot act without mind -- there is no action apart from this, and no "copying" when that is understood as purely a "physical labor," and mindless.

But let's look more at this idea of "copying" and see whether it is justly thought of as "mindless" even in some more casual sense. Let us further see whether the "source of an object's value" is the originator of the idea in any meaningful way.

I'm currently raising a baby daughter. In striving to provide her what I can of an "education" -- even in these first few months -- I have had occasion to reflect on the role "copying" plays in learning. Let me start here: my baby girl, no matter how creative she may be, or may one day be, does not innovate anything that has not been done before by one or one million other babies.

When it comes to using a spoon, playing with simple "cause-and-effect" type toys, making the early sounds of speech, or etc., she appears to depend, specifically and strongly, on copying those behaviors that she observes in others.

Is this copying in any sense "mindless"? I would say not. Indeed, it seems profoundly mindful, as she works to understand what goes on around her and replicate actions (and learn from their consequences). For after all, those things that she does may not be new to us... but they are absolutely new to her, and they do not come easily or without tremendous effort, both mental and physical.

As Rand speaks here to "the production of material values" (as opposed to say Mossoff's more generous construction, or my demonstration that patents quite possibly concern an ownership over a method rather than the configuration of an artifact, though maybe it is yet both), let me fastforward a bit to the point where my daughter is producing material values. Suppose that one day, she and her mother do craft projects together (as I am certain they will)... and my daughter copies something demonstrated by her mother, maybe a popsicle picture frame or something. Let us agree that there is some value in this object, which is to say that it is of value to someone. Of value to whom? To me, to my wife, and to my daughter at least.

Is it true in any meaningful sense that my daughter played no role in the creation of this value? That her "physical labor of copying" had nothing to do with the fact of the picture frame's existence? Can we say that, because she was copying another's work, another's method -- and perhaps even act for act, such that the results are practically identical -- that there was therefore no mental labor involved on her part? Was she acting as a zombie, or as a puppet, guided by another mental force through some mystical means? Does my daughter's picture frame exist by virtue of my wife's mental labor, apart from the physical labor required by my daughter to bring that actual frame into being?

And does my daughter have any claim of ownership in that which she has created by her own hands in this case? Does it properly belong to my wife instead (apart from issues of guardianship and the original purchase of the craft materials, which are beyond the present discussion)?

But then, no. For my wife would not have originated anything here either, in the sense of being the first human being to make such a frame. She, too, is "copying," if not in as direct a fashion as my daughter.  (Or even if she is an "independent inventor," what does that avail her?)

And we may well say that, "okay, but such popsicle stick crafts aren't protected by patent" (if, in fact, they are not, or ought not be in principle, but given what we've already discovered elsewhere, I don't know why I should have any particular confidence here)... and that's well and good. But it doesn't settle for us the question of "where does the value of my daughter's picture frame originate?" Not "value" in some strange, abstracted "universal" sense, but actual value, according to a person who values a thing, as in "she values it."

Does my daughter in this example owe some sort of literal debt to the originator of the popsicle picture frame? Does she even owe that shadowy and remote figure a moment's thought? Is there anything rationally preventing her from taking complete personal pride in the creation and saying, with no hint of untruth, and no reservation, that "I made this thing"? And should she not feel a sense of ownership thereupon? Is it not, in every real respect, her property?

So this...

"the physical labor of copying is not the source of the object’s value"

...is false, so far as I can reason. False in its framing, and consequently false in its conclusions.

The physical labor of "copying," hand in hand with the mental labor required to successfully copy in any fashion (by which we generally mean "learning") -- and without which no wealth can exist, and without which people would not survive -- is absolutely the source of an object's value, where that object is an instance of private property which could not exist without both the actual mental and physical labor of he who created it, in fact and in reality.

The object in question is thus property, belonging to the person who created it through his mental and physical labor, whatever it is we otherwise hope to convey through "copying," which seems increasingly to me like an anti-concept.

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Don Athos

Your posts raise some valid points and views on property, wealth, and value. But it seems to me that most of these views and arguements drop the context of a marketplace in a division of labor society.

 

I could use raw materials or fashion together all the requisite premade components of say an Amana microwave, or a Mercedes Benz automobile in my garage, use it and call it my property but not violate any tenets of patent law. The violation would come if I sold or traded it(or them),no?

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Don Athos

Your posts raise some valid points and views on property, wealth, and value.

 

Given that my initial participation in this thread led nigh-immediately to angry words, an accusation of cluelessness and self-contradiction, and a storming off or two (but no real substantive conversation), I appreciate your saying this very much. What I have to say typically makes (at least a kind of) sense to me -- but does it do so for anyone else? Sometimes I feel like I have to guess, and infer based on the kind and quality of silences I receive in return. When I try to "make a point" and everyone who subsequently replies steadfastly ignores that point? I tend to count that as meaning that the point was well-made... You can see the potential assumption-making dangers for me in such a system, but what else can I do? This isn't the Inquisition; I can't hold peoples feet to the flames and demand answers! :)

 

But it seems to me that most of these views and arguements drop the context of a marketplace in a division of labor society.

 

I could use raw materials or fashion together all the requisite premade components of say an Amana microwave, or a Mercedes Benz automobile in my garage, use it and call it my property but not violate any tenets of patent law. The violation would come if I sold or traded it(or them),no?

 

So, I think that there are a few ways to answer your question. I'll try to find the important ones.

#1) It pertains to our discussion as to "what is the law currently," but really what we're after is "what ought the law be"? So, whether or not you're welcome to build a Mercedes Benz (treating that as a patented product for the purpose of discussion) for your own personal use according to current law or not, we have to look at the arguments to try to determine whether such personal use is considered kosher... or is, you know, the initiation of the use of force.

Here is Rand once more, emphasis added:

 

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.

 

Rand is talking about the forbidding of an "unauthorized reproduction," consonant with the claim that a person may own an idea, giving him total discretion over how that idea is utilized by others. So no, I don't think that making your own Mercedes would be kosher by her rationale.

Now, Mossoff has this to say:

 

...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.

 

I believe that by including the term "profit," Mossoff means something roughly like this: that if you were to build your own Mercedes in your own garage, that you are hurting Mercedes in denying them the profit that they would have realized, had you purchased a car from them instead.

To summarize, regardless of current U.S. law, I think "building your own," even for strictly personal use, would be considered a violation of IP based on the cases made by Rand and Mossoff.

#2) I can't speak very well to U.S. law, not being a lawyer. I recognize that there are a number of recognized exceptions to a strict application of IP called "fair use," but I get this feeling that the definition of and rationale for fair use is as ambiguous as nearly anything else in this discussion. So... could you argue for personal use as fair use, and know ahead of time whether you were breaking the law or acting within your own rights? I doubt it. It seems to me that it would depend on the judge who hears the lawsuit brought against you, and his personal beliefs on IP from wherever-it-is that they stem.

In looking around briefly, I did find this (though I cannot swear to its veracity, as I have not double-checked or found other reference):

 

35 U.S.C. 271 - Infringement of patent.

(a) Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States, or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.

 

If you were to build your own Mercedes, would you therefore stand in violation? "Makes" is listed as a violation (first, no less), so I must answer yes (while again acknowledging my own ignorance, and especially to the content of whatever is meant by "except as otherwise provided in the title").  Maybe somebody else with greater expertise in the field can clarify this matter.

#3) But in reality? It seems highly unlikely to me that, should you build your own Mercedes, that anyone who would otherwise wish to sue you would ever discover the fact, or that they would wish to go through the inconvenience of a lawsuit even if they did.

And it seems a pretty odd thing to me, that, given what else I know about the "initiation of force," and man's rights, and how important they are. It seems odd to me that we could all be violating one another's rights from our garages, though the "victim" is never made aware of the crime (and perhaps the crime is even committed in mutual ignorance). That I was violating the "cat exercise" patent holder's rights, not only in ignorance of that specific patent, but unaware that any such thing could even exist on God's green Earth, or be taken seriously by anyone (let alone deemed proper by officials within the US government, let alone in concord with the advocacy of IP by professors like Mossoff, as I believe I have demonstrated).

I wonder if that patent holder shuddered a little bit, like Ben Kenobi recoiling from the destruction of Alderaan, when I stomped all over his rights in the fashion that I did...?

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Would you respond to post #38 and #41? Crow's posts are pretty good to me and address different points.

Also, I noticed something worth addressing.

#3) But in reality? It seems highly unlikely to me that, should you build your own Mercedes, that anyone who would otherwise wish to sue you would ever discover the fact, or that they would wish to go through the inconvenience of a lawsuit even if they did.



But in reality, I really have no idea how you would, by chance, make a Mercedes in your garage. To make a Mercedes requires specific knowledge of specific methods, so there is no realistic possibility that you would ever make one in your garage. Well, there are perhaps a couple ways to "make" a Mercedes. One is to reverse engineer an existing Mercedes, or build a car and claim it is a Mercedes even if it in no way functions as a Mercedes. When reverse engineering, that in itself is probably no violation to the degree you built it and at least *that* takes ability, but I would not say it is legitimate to go out and *sell* it. That is, if you didn't do something like modify it to fly, in which case it'd probably be a really good idea to partner up and *acknowledge* that you needed a real Mercedes to build a flying Mercedes.

As for inventing pencil sharpeners, that is unrealistic. That is, it's more like a very minor example, and easy enough to make that I doubt there is much you can do to patent a pencil sharpener. It is so easy to invent a unique one that working out the few cases where a pencil sharpener violates IP is near impossible. Prosecuting every stolen pencil would be near impossible as well, no?

Again, I'm mostly curious about any responses to Crow.

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But in reality, I really have no idea how you would, by chance, make a Mercedes in your garage.

 

I'm responding to a specific example that tad had raised in the immediately preceding post, attempting to answer his question in the spirit it was asked. He is asking whether building a patented item for one's personal use alone (i.e. not attempting to sell it) is still a violation of IP. Whether it is a "Mercedes" or anything other thing seems inconsequential to his question; I used Mercedes because it was the very thing he had supplied. Further, he did not speak of "chance" here, and so neither do I.

Again, please attempt to understand my posts, in part and in whole, in the context of the discussion which is taking place.

 

To make a Mercedes requires specific knowledge of specific methods, so there is no realistic possibility that you would ever make one in your garage. Well, there are perhaps a couple ways to "make" a Mercedes. One is to reverse engineer an existing Mercedes, or build a car and claim it is a Mercedes even if it in no way functions as a Mercedes. When reverse engineering, that in itself is probably no violation to the degree you built it and at least *that* takes ability, but I would not say it is legitimate to go out and *sell* it.

 

Well, in the post of mine from which you're quoting, I think you'll find that I'm contending that both Rand and Mossoff's arguments hold that it would be a violation to build a Mercedes (even without any intention to sell it) to the extent that one succeeds, whether through "reverse engineering" or any other process. And also that it would be a violation per the portion of Federal Law that I found and quoted.

 

Do you find me wrong in either analysis?  If so, how so?

 

As for inventing pencil sharpeners, that is unrealistic. That is, it's more like a very minor example, and easy enough to make that I doubt there is much you can do to patent a pencil sharpener. It is so easy to invent a unique one that working out the few cases where a pencil sharpener violates IP is near impossible.

 

Once again, I did not introduce "pencil sharpeners" to this thread. It was supplied originally by the linked Sandefur essay and then commented upon by Thomas who signified that a given method for sharpening a pencil was properly patentable (save for that which would fall under some "prior art" exception), as well as mechanical pencil sharpeners. I am responding to specific arguments for IP as I find them, whether they are Rand's or Mossoff's or Thomas's or tad's or whoever's. Perhaps they are not your arguments, and perhaps your arguments would be better than theirs... but for us to know that for certain, you'll have to supply them. :) Thomas discussed pencil sharpeners, tad asked about the Mercedes, and that's why we're talking about those things. Those specific items and their particular features are less to the point than the principles which underlay them, as to whether one can own an idea, and if so, by what means, and through what implementation.

 

Prosecuting every stolen pencil would be near impossible as well, no?

 

Very much so. But perhaps, if we believe sufficiently in the righteousness of IP, we could still enforce selectively.  Or perhaps the rampant violation of rights through IP justifies a much more... proactive state, so that we'll have a better chance of finding and prosecuting stolen pencils, and people playing with their cats in unapproved manners, and etc.

 

Would you respond to post #38 and #41? Crow's posts are pretty good to me and address different points.

 

I will immediately after posting this. I've meant to get back to them at some point, but I've thus far found it daunting to start as I expect that he and I will have disagreements on the source of rights that seem to me not to address the topic I'm interested in directly, and possibly other ancillary issues as well.

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

 

My contention is that ideas are not property at all. The thing that one makes, when one makes property, is 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.

 

True.

 

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).

 

Yes. That is my idea of property.

 

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...

 

Not roughly the same, but the same. The creation of a material value in this way requires both mental and physical labor. (Unless we introduce spirits who act as minds without bodies, and zombies who act as bodies without mind.)

 

...such as package it somehow, and legally define it. Property rights don't exist without a proper government to protect them.

 

I disagree. I think rights are not granted by any specific institution, though it is proper to speak of a government protecting rights as you do. That is the role of a government, after all. When a government fails to do this, it is not that a person's rights do not exist, it is that their rights are violated. (If these rights did not exist without governmental recognition, then they could not thereafter be violated.)

A man living in a frontier society without a recognized law (or one where the government is not equipped to provide a proper defense of rights) still has property rights over his land and possessions, though he may have to defend them himself (just as someone does while waiting for the police to arrive in a home invasion, or etc).

 

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.

 

It is not the case that rights do not "come into being until there is a government." It is through the recognition of rights that we seek a government, and know to look for a "proper" one (which is: one that will protect our rights fully, as opposed to the governments we've had thus far).

Rand's Ethics and Politics are concerning the nature of man qua man, and they thus apply to every individual, regardless of his present circumstance. A man on an island yet has rights (even in the "negative," political sense) in that we know that this man must not initiate the use of force (or have the use of force initiated against him) should he ever participate in any further society.

 

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.

 

This is indeed how IP seems often approached -- through a metaphor of land ownership. I do not agree that this metaphor is appropriate. And you may certainly "sell what's in your head" in the sense of offering instruction through many various means; education is an economic good. But it is different altogether to claim that what is in your head may not be used by anyone else even if it is also in their head (and furthermore and even if it is there through completely independent means). Yet that is the claim of IP, as advanced by Rand, Mossoff, and most of the participants in this thread.

 

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.

 

Once IP is granted, I don't think anyone will take issue with the idea that there must be some means by which it is recognized by the government. I would insist on some "objective" means that I do not think has been yet defined here, or anywhere else.

The central point is that describing the process by which IP may be handled is not making an argument that IP exists, or ought to be recognized, in the first place. If the argument boils down to this -- that "rights are what the government says they are, do not exist apart from the government, and therefore the government may create IP as it pleases (or perhaps any other 'right' as well)" -- then I must simply disagree.

 

In the realm of ideas, the laws surrounding copyright, patents, etc. are those "practical rules" that turn an idea, potentially, into a product.

 

Yes, I agree -- there's no question that these laws are practical rules which aim to turn ideas into products (though in some senses, ideas are already "products" in that, as I've said, education is an economic good; perhaps IP may be better understood as interference into a natural marketplace, rather than an attempt to create a marketplace out of nothing) . But I am not satisfied with "practical rules." Even in granting IP in full, I would insist on "objective rules." Here is my standard:

 

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.

 

Otherwise:

 

That which cannot be formulated into an objective law, cannot be made the subject of legislation—not in a free country, not if we are to have “a government of laws and not of men.” An undefineable law is not a law, but merely a license for some men to rule others.

 

So... before, say, creating a derivative work of art, I would want our artist to be able to refer to objective laws/standards such that he will know in advance of creating that art whether it is forbidden to him or not. I think that to accept anything less (by which I am close to including "advocating IP without being able to formulate objective application") is to endorse whatever it is the opposite of "a free country" or "a government of laws and not of men" must be. It is to grant the license which Rand describes, "for some men to rule others."

 

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).

 

While you may offer your idea to the marketplace for sale in the form of teaching someone (for some price), I do not see the justification for forbidding others to do likewise, should they have the same idea (or a similar one).

 

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

 

Yes, but the very question we must answer is whether your ideas are "your own property" in the sense that you have the property right to exclude others from those ideas, or their use.

I say that ideas are not property. They do not convey these property rights.

 

...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.

 

Or! If I am wrong and this is the case, then perhaps we can say that ideas may be "property," but specific aspects of property rights must be adjusted to reflect this new context. Specifically, owning an idea does not mean having the right to prevent someone else from owning that same idea, or profiting from it.  It may continue to be property otherwise, in the sense of being able to use one's ideas to profit as one can.

 

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?

 

I think that, if we decide that there is any such thing as valid IP, that this would at least be a far more just implementation than our current approach.

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About the Mercedes. I'm saying that the only way you could reasonably build a Mercedes is with a blueprint that may or may not say you can make and sell these Mercedes. Otherwise, try as you might, you will never create a Mercedes, so there isn't any IP to violate. To me, it's asking that if Martians came to earth with a duplication beam, gave it to you, then you start making copies, would that be an IP violation? It's just implausible. Now, if you acquired blueprints from an employee who scanned blueprints without permission and then you built a Mercedes, that would be an interesting discussion.

""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)""

I think you misunderstood Crow's point. He's saying ideas in your head are not property, period. He's not saying that not all ideas are property. I believe the point is *no ideas* are property. As far as I saw, you're working on the presumption that intellectual property is *idea* property. Now I don't know all of what everyone else said, but I am keeping up with your responses to me, and Crow. There's just a lot of content. So at least stick to this line of reasoning.

This is indeed how IP seems often approached -- through a metaphor of land ownership. I do not agree that this metaphor is appropriate. And you may certainly "sell what's in your head" in the sense of offering instruction through many various means; education is an economic good. But it is different altogether to claim that what is in your head may not be used by anyone else even if it is also in their head (and furthermore and even if it is there through completely independent means). Yet that is the claim of IP, as advanced by Rand, Mossoff, and most of the participants in this thread.

It's not the "in the head" that matters at all, but rather if your idea has a realizable form. Education usually involves providing information on discoveries, so sale is in the form of service. I think providing an economic good like a service is not a great example, since all you'd be doing by teaching is helping someone make discoveries. You aren't talking about a particular packaged, legally definable, application of an idea. Even tangible property has to be legally definable as an application of an idea, including how to make use of what's before you - also why you can't touch foot on Mars then say you own Mars. You cannot legally or objectively define all of Mars as one's property to the extent no one is able at all to make use of all of Mars. If you can't define a piece of property according to what a person can reasonably establish as property, then there's nothing about it to call property.

The sense I get from you is that you say it's not possible at all to reasonably establish legal limits of IP, so there's nothing about it to call property. Arbitrary confines turns IP into a meaningless blob. I agree. At least, if I go on the premise that IP is idea property. But that's not my premise. IP is about a packagable, legally definable, application of an idea. Tangible property is the same, it's just that "legally definable" will vary, just as owning a computer is not treated the same as owning land. If anything, IP is closest to land property because you can expand it infinitely (I own the universe), or constrain it so much that you only own something when you stand on it (this patch of flowers is mine until I move). The only way to really reasonably constrain what one owns is to point to the (primarily mental) effort required to make a portion usable.

For me, the difference is that IP is ownership of information space which is limited to what is usable in reality (you couldn't patent a time machine). By an information space, you can think of it like all the data on the Internet, except I'm referring to a very abstract idea where there is a limited amount of information in existence which can be reasonably divided according to what is usable, just like land. All property is to some extent division of reality according to use, so I consider IP and tangible property subsets of that. I'm not bringing up analogies here, I'm saying IP and owning land only differ in the form of space they take up. Information is abstract, sure, but so is land. I don't see the world divided as squares on a chess board. However, to make a claim on anything as property, some real result in reality must go with it.

Edited by Eiuol

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You know, on reflection I think that Eiuol made a very intriguing point regarding the implementation of IP law when he said:

 

Prosecuting every stolen pencil would be near impossible as well, no?

 

And I agreed that it would be near impossible. But we don't need theoretical pencils made from theoretically patented pencil sharpeners to examine the near impossibility of enforcing even those IP claims that I have to imagine every IP advocate would endorse, like... media. Video games. Novels. Television shows. Movies. Music. Routinely stolen, traded, remixed, turned into "meme," or fan art. I think it's not exaggerating to say that this is a key part to the current youth culture, if not its defining feature.

Perhaps it is the case that we live in some sort of a Dark Age where seemingly an entire generation thinks nothing about initiating the use of force against others... but I cannot quite yet credit that. In any event, I think it's clear that the genie is out of the bottle here, and that technology will allow even *greater* "theft" as it continues to evolve and adapt to personal use (we might imagine, for instance, what 3d printer technology might one day mean to patent enforcement).

I wonder: if we were serious about enforcing IP, would we want charges brought against every person who has participated in illegal music sharing? And more than that, if I'm right in identifying that patents protect methods (at least as much as they do product patterns) and since every human action can be broken down into one or several methods... well....

If we were serious about IP, how would an individual ensure that he was never, himself, violating anyone else's rights? Take the example of the cat exercise patent. However else we feel about it, here is what cannot be disputed: this was an official patent; I violated it.  (And maybe you did, too!)

How could I have prevented myself from doing so? How do I know that those things I do currently are not also covered by some other patent or intellectual property? Would I have to know every extant patent? How many do we suppose would apply to me if we were to look at only the last 20 years in the United States? Every patent from, oh, 1993? Shouldn't be that many, right? :)

Furthermore, I write, fiction and poetry -- how can I guarantee that none of that which I write is "too close" (however that's defined) to someone else's work? Going off of the standard of all works -- in any medium -- for at least the last fifty years... well... how would I ever possibly be able to process all of that information?  How would I even start?

In terms of an individual making sure he does not violate IP, in terms of a government retaliating against all who do, it all seems "near impossible," only that I'd say that we could reasonably drop the word "near." Not alone in some vision of a dark future where pencil sharpening methods are granted patents, but here and now.

But not only do I question whether IP is at all enforceable, except in highly targeted and selective ways, I wonder: would we even want a full enforcement of IP, were it possible?

Remember Mossoff's construction: "all values created by all types of productive labors." I'm not certain whether anyone here (myself included) realizes how permissive this scope is for declaring something "property." It certainly would hold for the cat exercise patent, and I believe for the anti-Kant t-shirt as well. While I do not know offhand Rand or Mossoff's expressed ideas regarding "fair use," I think a lot of that is up for review as to whether it is truly fair at all, given Rand's position on the rights of the innovator.

I can't really prove my vision of "possible futures," but I think I'm not exaggerating when I say that, were Mossoff's arguments taken seriously and implemented fully, with perfect enforcement, that we would truly have a society defined by "permission." It would throttle, not only innovation, not only culture, but human existence.

Rand was speaking to a similar observation, I feel, when she commented on the impracticality of holding IP in perpetuity:

 

If [iP] were held in perpetuity, it would lead to the opposite of the very principle on which it is based: it would lead, not to the earned reward of achievement, but to the unearned support of parasitism. It would become a cumulative lien on the production of unborn generations, which would ultimately paralyze them. Consider what would happen if, in producing an automobile, we had to pay royalties to the descendants of all the inventors involved, starting with the inventor of the wheel and on up. Apart from the impossibility of keeping such records, consider the accidental status of such descendants and the unreality of their unearned claims.

 

Now... it is not central to my point, but since we're here, I should note that her mention of the "unreality" of "accidental" descendants' "unearned claims" raises my eyebrow. Does that same reasoning hold suit for material property? I doubt Rand would argue so, but I can't yet see the principled difference, once we grant that IP and property are analogous.

But allow me to provide my paraphrased reading of Rand's argument here. I expect that some will find this interpretation unfair, but what can I say? I'm here to make a rhetorical point (and the original is available right up there for your discriminating eye): She's saying, "if IP actually were property, and a right, it would be perpetual like all property. But that would destroy the world, so we can't do that."

In short, I think that treating IP as fully a right in any objective manner, where we punish everyone who has listened to an unapproved song over YouTube, even if accidentally, every girl who has written about shipping Harry and Hermione, every cat owner who used a laser to play with his cat -- or even to grant that if IP is property, it is therefore as perpetual as any other property, and for the same reasons -- would be such a blight on the world, such an evil, that we could not help but recognize the essential nature of the initial claim that "IP is a right."

For what other right -- what actual right -- works in this way? Do we want to see the right to life implemented "only so much"? Are we afraid that too strict a grant of liberty will have consequences too dire and negative to be countenanced? What about material property (i.e. property)? Do we allow for property "to a point," and then strip it from the hands of "accidental descendants?"

No actual right is a zero sum game. One man's gain in property is not another man's loss, but it is an absolute gain in wealth. The more property generated, the richer people are (and society consequently). Yet note that Rand describes the accumulation of IP over time as "a cumulative lien on...production"! If a lot of IP is a "cumulative lien" deemed too great to bear, then what is a little IP? And what does it mean when the terms of IP, thought too difficult to calculate in any objective fashion, lengthen and lengthen with no principled end in sight... just as the rate of innovations that should be ownable under both patents and copyrights climbs higher and higher?

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About the Mercedes. I'm saying that the only way you could reasonably build a Mercedes is with a blueprint that may or may not say you can make and sell these Mercedes. Otherwise, try as you might, you will never create a Mercedes, so there isn't any IP to violate. To me, it's asking that if Martians came to earth with a duplication beam, gave it to you, then you start making copies, would that be an IP violation? It's just implausible.

 

I do understand what you're saying. In reply, I'm saying that the plausibility of the scenario does not matter to the spirit of tad's question. I think it would have been contrary to productive conversation (and possibly rude as well) to have come back at him with something like: "You? Build a Mercedes in your garage? Not bleeding likely! Might as well start talking about Martians..." It would not have been at all to his point, and it would not have answered his question, but it would have left him feeling like I was trying to evade/duck his question (which, in that case, might well be true).

I prefer to meet peoples' questions head-on, insofar as I understand them and am able. I prefer to deal with people as honestly and directly as I can.

 

Now, if you acquired blueprints from an employee who scanned blueprints without permission and then you built a Mercedes, that would be an interesting discussion.

 

Or you could be a mechanic who has purchased old parts from junk yards, or there might be many different ways to salvage (ha!) this particular scenario for verisimilitude, but... it really isn't necessary. I understood the point to his asking (I think!) and I responded in kind (I think!). :) I'm fairly sure he wasn't trying to get into the particulars of how someone might build a car, but that he just selected two items at more-or-less random to test a theoretical aspect of IP enforcement.

 

""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)""

I think you misunderstood Crow's point. He's saying ideas in your head are not property, period.

 

I...

How does this happen? I'm... really struggling to understand here...

The portion of Crow's post which you've quoted above here? This was my response to it:

"Yes. That is my idea of property." :D

 

He's not saying that not all ideas are property. I believe the point is *no ideas* are property.

 

Yes, that's certainly my point. No ideas are property.

 

As far as I saw, you're working on the presumption that intellectual property is *idea* property.

 

It is.

 

Now I don't know all of what everyone else said, but I am keeping up with your responses to me, and Crow. There's just a lot of content. So at least stick to this line of reasoning.

 

Okay, we'll certainly look at your line of reasoning (though keep in mind that my responses to other people must deal with their line(s) of reasoning, even if it does not match your own, so if you do not know that relevant context, you are not well-disposed to understand my replies to them). I have no problem with discussing things on your terms, insofar as I understand them. But at heart, I believe that IP is about owning ideas. Or at least, I think the Objectivist case for IP is about that, which is what I think we're generally discussing, and what Thomas supposed he was defending when he started this thread. Here's Rand:

 

[W]hat the patent or copyright protects is not the physical object as such, but the idea which it embodies.

 

Not the object, but the idea. That is what is "protected." That is the property in question.  The idea.

 

It's not the "in the head" that matters at all, but rather if your idea has a realizable form.

 

Begging your pardon, but here is the quote to which I was (in part) responding, and a specific origin of the (para)phrase "in the head":

 

So in the case of growing corn, you may want to sell what's in your head: your ideas of how to grow corn.

 

So we have a person who wants to sell his "ideas."  Crow then describes a process for doing this very thing, and I agree that one of the requirements Crow holds for being able to do this is the creation of the "realizable form" you mention, but here is his conclusion:

 

Then you may sell it.

 

Well, what is the "it"? Is "it" not "what's in your head: your ideas of how to grow corn"? Because that's my reading.

He is speaking of "turn[ing] an idea, potentially, into a product." Not just of selling a material product, but "offer[ing] your idea for sale" (the emphasis on the word "idea," presumably to demonstrate its importance, is Crow's).  I think he's talking about ideas as property.

 

Education usually involves providing information on discoveries, so sale is in the form of service. I think providing an economic good like a service is not a great example, since all you'd be doing by teaching is helping someone make discoveries.

 

I'm sorry, I don't understand what you're talking about here. When you say that education "is not a great example," I don't know what you mean (what was it supposed to be an example of?) except that you seemingly find every case offered in this thread for any kind of discussion as a poor example of something or other. You obviously want me to come to whatever conclusions you've reached, and I respect that, but you seem to be unwilling to discuss anything that is not defined by your own terms... yet I don't know what those terms are, and I clearly don't understand them. We need a common ground from which to work or else we will continue to speak past one another.

So listen, you've asked me to respond to Crow's posts, and I have, to the best of my ability. Would it be impolite if I asked you, now and in return, to answer some of the questions I've tried to put to you directly over several posts?

We can start small and build from there. You said that you considered the cat exercise patent "terrible." What specifically makes it terrible?

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You know, on reflection I think that Eiuol made a very intriguing point regarding the implementation of IP law when he said:

I'd prefer if you stop bringing up Mossoff because 1) I forget his specific claims, and 2) I'm not scrutinizing Mossoff's arguments for IP or even agreeing, I'm using my own ideas/arguments. Also, not even tangible property is owned into perpetuity... So I don't understand your point about the rest. Dead people can't own anything, nor can collectives (leaving out for now corporations where legally it's not so simple nor should it be). Not only that, if your point is that IP and tangible property are not the same, well, that's nothing new. I already said not even land is treated the same as individual objects. IP is property for the reasons I stated earlier, even if you can still demonstrate that IP is not transferable (I can't pull patents out of my mind, Tesla couldn't either) and tangible property is transferable (here, take this television, it is now yours). So, I think Rand's only point is since you can't transfer IP like tangible property, limits need to be set in terms of time. That is, IP lives and dies with its creator.

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IP violations can only occur in a commercial setting. If an idea or method or product is offered for sale without the permission of the original owner a violation has occured. The only context in which IP and all its derivatives are relevant, are in a division of labor society.(.)

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I'd prefer if you stop bringing up Mossoff...

 

I'm sorry, but I don't plan on doing that, for reasons I'll elaborate presently which I hope you can understand.

 

...because 1) I forget his specific claims...

 

That's easily remediable. Here's the material I'm referring to.

 

...2) I'm not scrutinizing Mossoff's arguments for IP or even agreeing, I'm using my own ideas/arguments.

 

That's fine. I am scrutinizing all of the arguments presented, so far as I can. Mossoff's arguments were introduced earlier in the thread, though not by me. Mossoff roots his claims in his understanding of Rand and Objectivism. For these reasons, I find them relevant to the thread, and worth discussion.

I understand that your claims are not necessarily the same as his. They don't have to be, to be worthy of discussion in this thread. For yourself, you can establish why you think he's wrong (if you do), if you investigate his claims, or you can ignore them altogether. I don't require you to discuss Mossoff. But you are not the only person participating in this thread, and your ideas/arguments are not the only ones which have been advanced.

Most specifically, I am using my own ideas/arguments (just as you are using yours), and I find that Mossoff's arguments provide a strong case to examine, and against which to situate my own thoughts. I believe that they are a good foil.

 

Also, not even tangible property is owned into perpetuity... So I don't understand your point about the rest. Dead people can't own anything, nor can collectives (leaving out for now corporations where legally it's not so simple nor should it be).

 

When you say that "not even tangible property is owned into perpetuity," do you mean to say that society is justified in taking tangible property from owners who inherit it, based on the length of time it has otherwise been owned, and put it into some "public domain"? Because that's the point of comparison to which you're speaking.

Dead people can't own anything, but living people can inherit property and confer their property onto whomever they'd like for their own bequeathal.

 

Not only that, if your point is that IP and tangible property are not the same, well, that's nothing new.

 

IP and tangible property are not the same, and thus they ought not be treated the same. Specifically, owning an idea (or whatever you believe IP to cast as property) does not and ought not convey the right to restrict others from using those same ideas in those same manners. That is one of the ways they should not be treated the same, on account of the fact that they are not the same, and the roles that ideas and "copying" and etc., actually play in human life on earth.

IP is so unlike tangible property that it is not even property or a right.

 

I already said not even land is treated the same as individual objects. IP is property for the reasons I stated earlier...

 

I sincerely don't know what those reasons are, or where to find them, and if you did state them earlier, I expect that I did not understand your explanation. Could you please direct me to them?

 

...even if you can still demonstrate that IP is not transferable (I can't pull patents out of my mind, Tesla couldn't either) and tangible property is transferable (here, take this television, it is now yours). So, I think Rand's only point is since you can't transfer IP like tangible property, limits need to be set in terms of time. That is, IP lives and dies with its creator.

 

But Rand does not say that at all:

 

In the case of copyrights, the most rational solution is Great Britain’s Copyright Act of 1911, which established the copyright of books, paintings, movies, etc. for the lifetime of the author and fifty years thereafter.

 

You should read Rand's words before attempting to determine her point (in the same fashion, and for the same reason, that I've reminded you to read my words before deciding what I must be trying to say).

 

IP violations can only occur in a commercial setting. If an idea or method or product is offered for sale without the permission of the original owner a violation has occured. The only context in which IP and all its derivatives are relevant, are in a division of labor society.(.)

 

If you believe that these things are true (and moreover consonant with the Objectivist stance, though who knows if anyone argues for that at this point) in light of the quotes I provided from Rand, Mossoff, and the Federal Law Code in this thread, then I don't know how I could convince you otherwise.

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Does IP Concern Owning Ideas?

 

 

One aspect that I'd like to briefly examine on its own is one of the conclusions I've come to during my investigation into IP.  Specifically: what is the nature of the "property" that is owned under IP?  I contend that IP is a claim that people may own ideas.  But I have seen others, in this thread and elsewhere, advance a view where the property protected by IP is not an "idea," per se, but is instead only certain material applications of an idea.  That is to say, a person cannot own an idea as such, but he may own all of the material values associated with a given idea, in the name of IP.

 

Why is this distinction important?  I can't say for certain in every case, as it may vary from person to person, but I suspect that one of the reasons why some might insist on this distinction (though it would appear to have no practical difference) is because it would then appear to resolve the apparent contradiction I've highlighted between IP and Rand's regular use of "material values" to describe property in essays like "Man's Rights."  It is saying, in effect, "there is no contradiction here; intellectual property concerns material values, too."

 

This kind of superficial linguistic agreement, however, is only just that.  Rand's use of "material values" in those essays is inextricably and meaningfully bound with the specific arguments she presents there in describing property and property rights, and their application -- it is there that the contradictions lie, and not simply in word choice.  For instance, when Rand describes the source of a man's claim to a material value (i.e. property) in "The Property Status of the Airwaves," she is describing a process that is antithetical to the process she describes in "Patents and Copyrights."  That sort of contradiction cannot be done away with by claiming that Rand is discussing the same sort of thing in "Patents and Copyrights" as elsewhere ("material values"), for she is not.

 

So if property and property rights concern "the right to gain, to keep, to use and to dispose of material values," then what is the province of intellectual property?  I think Rand understood what is claimed with IP, and I think she made herself clear (emphasis in original, as for instance, the parallel italicizing of "idea" to "intellectual" which helps the reader to connect these two terms; "intellectual property" is "idea property"):

 

 

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.

 

I contend that her meaning is unambiguous.  When she says that IP does not protect physical objects as such, but the ideas which they embody, she is saying that the "property" in IP are ideas.  But this is not alone what Rand "contends."  It is also the only thing that makes IP sensible.

 

Given a situation where Man A innovates and builds Object X, and Man B builds Object Y (which is here considered sufficiently similar to X to constitute an IP violation), IP holds that Man A owns Object Y.  Man A's claim to Object X is that he has performed the mental and physical labor necessary to bring Object X into being (qua material value; or property).  Obviously Man A cannot make the same claim for Object Y, as it was Man B who performed the mental and physical labor necessary to bring Object Y into being (in the same sense as Man A did for Object X).  So how can Man A claim Object Y as property (keeping our view of property as solely "material values" and not "ideas") without laying a prior claim to the idea behind Object Y?  He cannot.

 

It is a dodge (and an ineffectual one) to say that Man A simply owns Object Y (somehow) without recognizing that the source of this claim is that Man A has property in the idea embodied in Object Y.  We cannot ignore the reality of this situation out of existence.  IP is the claim that ideas are property.

 

Now, like I say, the reason I think some people do not want IP to be a property claim on ideas, as such, is because they are dealing with an apparent contradiction between some of Rand's essays/claims.  It is almost as though they have taken as an unassailable premise that no such contradictions can possibly exist.  Thus, when it seems like there might be a divergence between Rand's treatment of property generally, and her discussion of IP, it must be the case that she's actually talking about the same thing despite how it appears.  Thus, it's all somehow "material values," whatever that's left to mean.

 

The other way to go, to preserve consistency on this point between Rand's essays, would be to assert that she never meant "material values" (even when discussing that very thing, by that very term).  It is a far bolder stance, and the mind thrills at what Rand might construed to mean on all sorts of topics by virtue of such... uh... liberal readings.

 

And -- with apologies to Eiuol -- it is Mossoff's:

 

 

Ayn Rand’s genius was to recognize that man’s mind is his basic means of survival, that production is the application of reason to the problem of survival, and thus that all property is logically intellectual property at root.

 

Rand’s ethical theory makes explicit why property rights have never been limited to just physical objects: the genius and success of Anglo-American property law is that it recognized that property rights secure values, not physical objects.

 

Mossoff's reasoning here is consonant with Rand's views in "Patents and Copyrights," but not anywhere else.  Rand made explicit why property rights are not "limited to just physical objects" when she said that the right to property is "the right to gain, to keep, to use and to dispose of material values"?  Rand had a funny way of making things explicit!

 

And while man's mind is indeed his basic means of survival, this observation does not give us license to drop out every other aspect of what man's survival actually entails, and treat man as some sort of phantom that floats around reasoning and thereby surviving... (somehow!)  To treat property as alone the work of the mind, ignoring the physical labor equally necessary to create that property, is to mistake what wealth is, why it is necessary and a right, and how men come by it in reality.  To enshrine this false division in law is to commit a grave injustice.

Edited by DonAthos

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Okay! Sorry about the long delay in response. I've been busy the past week without enough time to write the long post I want to write. First, I want to bring up specific points of yours that my post will revolve around. This is a long post, but the essential question is at the end. I could write more, but I've been writing this for several hours at least.

Specifically, owning an idea (or whatever you believe IP to cast as property) does not and ought not convey the right to restrict others from using those same ideas in those same manners. That is one of the ways they should not be treated the same, on account of the fact that they are not the same, and the roles that ideas and "copying" and etc., actually play in human life on earth.

I agree with you certainly that IP, and tangible property are different. Land as property is also different from both. What you wrote I read as: "Because IP and tangible property are different, then they both can't be property. To hold both is a contradiction. In this way, IP is invalid." The issue is that while I agree these subcategories of property differ, they share the same genus, or stated differntly, they share the same parent concept. My claim in the first place is that IP is legitimately a subconcept of property, meaning instances of IP will have their own unique considerations compared to land or tangible goods. At the same time, IP has essential characteristics of property. I don't want to argue by means of definition, but this is clarifying my position and what it's based on.

I'm going to use the definition Rand gave for property, the one you provided: the right to gain, to keep, to use and to dispose of material values. I also include some important but not essential characteristics, which are legally definable, with a reasonable limitation of scope. I will also add that property is a right to what one creates through their labor and thinking. Creation is impossible without both thought and labor - people are not automatons nor are they phantoms. This much I think we agree on, so we don't need to rehash reaching these conclusions. I'm focusing on if property can include intellectual goods (patents, copyrights, etc), as well as tangible goods (computers, cars, furniture), and land (a plot of land for your house, a vacation home in another city, farm land). How these differ is less important than how these are all the same. Difference points out how to subdivide the concept property, but similarity points to whether or not IP belongs to the category property.

IP does apply to disposing of material values. Tangible goods as property means that I have a right to dictate how my piano may be used. IP means that I have a right to dictate how people may build or create a specific type of piano. A piano is a material value in both cases; the creation of a piano results in a material value as a consequence of the method used to build it -- that consequence is what I have a right to in terms of IP. While ideas are part of the means to do this, it's not precisely ideas that are being owned. In this context, knowing how to build the piano is no issue or violation. But when the idea integrates with the activity of creation in the external way (act outward instead of inward), that is where there is ownership.

Let's say there is a piano builder named Franz in the 1750s. Franz is the best piano maker in the known world, so it's essentially moot for IP to come into play. No one is good enough to make a piano as good as Franz, even with the blueprints. There's something about specific techniques he used he perfected through years of practice. No machines that can build pianos exists. His pianos generally are sold or given to someone else. Once he sold a piano to his friend, Wolfgang. Franz, as creator of the piano, is disposing of his property as he wishes by giving Wolfgang full ownership. Transfer of ownership is possible here since Franz has already created the piano, and Franz's existence has no bearing on the piano still existing. The piano will always be there until it rots. Wolfgang is the new owner, so he is now able to use the piano as his own property (of course, only so long as *that* specific piano exists). The story of Franz is straightforward, and I would think you agree about the use of property here. Franz makes money, Wolfgang has a new piano.

IP didn't matter as much back then. Property couldn't exist except in totally 100% tangible ways, as opposed to some non-tangible ways. Mp3s, torrents, ebooks, easy copying of data, software, etc, didn't even exist. Of course, each of those is exactly what IP is about. That is, IP matters a lot more in 2013 than in 1750. Not only can you attain all these things easily, none of them are tangible. So much of the world exists only in IP terms (all the mp3s in the world are not tangible) that if we reject IP, we'll live in a in the digital sphere without ownership, with ownership only in the directly tangible sphere. I'm not arguing based on "aha! You want to live in a world without rights!", I'm only saying that this is a concern to think about. Are property rights invalid concepts for digital (non-tangible) goods? Moving on from a potential tangent...

I really don't grasp why it is you're saying Rand ever was saying the IP is *idea* property, especially since in the same essay she talks about how discoveries about the world, which is an idea, is not and cannot be property. As far as I'm aware, she repeatedly talked about how intellectual property must be embodied. The embodiment of ideas is what IP protects, and the italics on idea to me is related to the same paragraph, not the previous paragraph. First she talks about ideas. Then talks about material things. Then she emphasizes idea again to keep up with the relationship with real, material, things. IP protects an idea, and is in some sense idea property, but it's not a bodyless idea that can be owned. In other words, calling it idea property is dropping the context that IP is supposed to apply to only *specific types* of ideas. You take *idea* property to it's logical conclusion, but that's exactly why embodiment is critical here.

"To treat property as alone the work of the mind, ignoring the physical labor equally necessary to create that property, is to mistake what wealth is, why it is necessary and a right, and how men come by it in reality." I agree. But, I also add that ignoring the intellectual labor is just as bad. Perhaps you aren't ignoring it, but the indicator of when something is property is only when something is made. So, let's go back to Franz, this time in 1867, and think about what it would be like if we only look at the material aspect.

So, everything about Franz is mostly the same. He's still a brilliant piano maker. This time, in 1867, he is capitalist and owns a factory thanks to the industrial revolution. He has quite a lot of money for machines to build his fine pianos with a method he developed. That means he also has laborers to work the machines, and pays them fairly. Wolfgang wants to buy a piano from Franz, so a piano is sent down the production line. Sergei is working there today, using the machines to build the pianos. This machine is not easy to operate, so to some degree, Sergei uses his mind to create. Still, the piano is based on Franz's blueprint.

Sergei builds the piano, then Franz tells him that it needs to be sold. Today, Sergei feels indignant, frustrated that this whole time, he owns the pianos he built with his hands. Ever since reading Das Kapital, he's been this way. "Why should Franz own these pianos? He only has some stupid blueprints", he thinks. So, Sergei says to Franz: "No, I won't sell the piano for you. I know I agreed to labor for you, but this piano is mine since I put the work into building it. You are exploiting me, denying me the fruits of my labor!" Perhaps Sergei is too dramatic, but *he* built the piano. All Franz did was draw up some blueprints. How should Franz resolve this? Or is Sergei right that the piano is his own? Franz could say "too bad, you agreed to the job", but Franz is a man of principles - he'd rather demonstrate to Sergei that it is just of him to determine how the pianos may be sold and used even if he never built them.

Edited by Eiuol

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This thread reminds me of one earlier concerning the 'walled-in neighbor'. And Eiuol's post above is hitting on the line of reasoning that I think causes the sides in these arguements to come to loggerheads(?).  In this thread *Idea* is sometimes used as a floating abstraction coupled with connotations of *property* used also as  floating abstractions. The arguement then devovles into a rationalistic semantic contest over quoted phrases. Trade , commerce or marketplace in a division of labor society is the only context where the idea of IP 'makes sense'. The epistemologic understanding of the concept *idea* is not what IP protects, ouside of trade or human interaction the concept of protecting an idea has no referents. So in one sense ideas can not be owned is the same way love, saddness, or hostility can not be owned as an economic value. But certain ideas in certain ways can be owned and should be  protected  and treated as property in certain contexts. 

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Okay! Sorry about the long delay in response.

 

No need to apologize for that. There's no time limit on the discussion, and I'd prefer that you take whatever time you need to understand the issues and express yourself clearly.

 

What you wrote I read as: "Because IP and tangible property are different, then they both can't be property. To hold both is a contradiction. In this way, IP is invalid."

 

Your paraphrase does not express my position. Allow me to attempt this again in succinct terms -- or at least, that portion of my argument concerning "contradiction." The rest of my argument, and the details, can be found across what is now several posts of material:

Rand outlines property and property rights in "Man's Rights." She elaborates on the concept in other places as well. Her descriptions of those things are contradictory, in both phrasing and fact, to her arguments for IP in "Patents and Copyrights."

 

I'm going to use the definition Rand gave for property, the one you provided: the right to gain, to keep, to use and to dispose of material values. I also include some important but not essential characteristics, which are legally definable, with a reasonable limitation of scope. I will also add that property is a right to what one creates through their labor and thinking.

 

When you state that "property is a right to what one creates through their labor and thinking," this is true and represents my position on the matter, so long as we keep in mind the context that "what one creates" refers to the specific "material values" (i.e. the "property"), borne of that "labor and thinking," over which one thus has "the right to gain, to keep, to use and to dispose."

 

IP didn't matter as much back then. Property couldn't exist except in totally 100% tangible ways, as opposed to some non-tangible ways. Mp3s, torrents, ebooks, easy copying of data, software, etc, didn't even exist. Of course, each of those is exactly what IP is about. That is, IP matters a lot more in 2013 than in 1750. Not only can you attain all these things easily, none of them are tangible. So much of the world exists only in IP terms (all the mp3s in the world are not tangible) that if we reject IP, we'll live in a in the digital sphere without ownership, with ownership only in the directly tangible sphere. I'm not arguing based on "aha! You want to live in a world without rights!", I'm only saying that this is a concern to think about. Are property rights invalid concepts for digital (non-tangible) goods? Moving on from a potential tangent...

 

But before we move on, I'm sorry but I have to note that just about none of this is correct. Whatever is true about the nature of property was equally true in 1750 and 750. Man had the very same rights then as today or tomorrow or a million years from now. And the dividing line between what you're calling "tangible property" and IP is not at the level of mp3s; an mp3 is fully a piece of property, as in the sort of "material value" that I'm saying Rand discussed in "Man's Rights" and elsewhere. The question of IP is not whether a given mp3 is protected property or not -- it absolutely is -- but whether the information encoded by an mp3 (i.e. the "idea" of it) is protected.

And the very idea that you can even joke that I'm arguing for something like "a world without rights" seems to me to demonstrate a continued and woeful lack of understanding on your part on the substance and meaning of my arguments. I might as well call you a Kantian (jokingly of course, with a winky face!) -- that would have the same flavor and style and intellectual merit. After all, and so far as I can tell, I am the one arguing for actual rights, Eiuol, and you are the one arguing against them, contra all sense or reason...

 

I really don't grasp why it is you're saying Rand ever was saying the IP is *idea* property...

 

That is very distressing to read, because I think I laid out exactly why I'm saying that in the post immediately preceding yours. Moreover, I think that Rand is so clear on this point -- as I have demonstrated -- that my "demonstration" is itself something like gilding the lily...

I just see no other way to understand how one might read Rand saying "what the patent or copyright protects is not the physical object as such, but the idea which it embodies" as other than that patents or copyrights do not protect physical objects as such, but the ideas which they embody. IP protects ideas. That's what Rand is saying, and that's why I'm saying it's what she's saying.

 

...especially since in the same essay she talks about how discoveries about the world, which is an idea, is not and cannot be property.

 

Right. She is drawing a distinction between that which IP may properly protect, in her view, and another category of ideas which it cannot -- "discoveries." This does not mean that such "discoveries" have to do with ideas while IP does not. It rather points up the fact that IP does have to do with the protection of "idea property," in that we must make certain not to confuse that with these "discoveries," which are deemed not protectable.

 

As far as I'm aware, she repeatedly talked about how intellectual property must be embodied.

 

Why "as far as you're aware"? She says that specifically in the very portion I've quoted while presenting my case, and I've said nothing to imply that this is not her position. I'm certainly not trying to hide it. Here it is again:

 

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.

 

Do you see how she says that "an idea...cannot be protected until..."? Meaning that once this condition is satisfied, then an idea can be protected. She continues:

 

But what the patent or copyright protects is not the physical object as such, but the idea which it embodies.

 

"But" because she is drawing a contrast between the fact of an idea's "embodiment" and the nature of the property being discussed. She's saying "yes, it must be embodied -- given some physical form -- but don't get confused by this! We're not talking about the 'material value,' per se, when we discuss 'intellectual property.' We are talking about the ideas themselves as property."

 

IP protects an idea...

 

And... that's it, Eiuol. That's the very thing I've been saying.

 

...and is in some sense idea property, but it's not a bodyless idea that can be owned. In other words, calling it idea property is dropping the context that IP is supposed to apply to only *specific types* of ideas.

 

None of this pertains to anything I've said or implied. I haven't been trying to draw any distinctions between "ideas" and "bodyless ideas" (if that even makes any sense? an idea may be embodied in an object, or several, but the idea continues to be the idea, and does not itself have a particular body), nor have I been saying that it doesn't "apply to only *specific types* of ideas." I am saying, and have been saying, that "IP is a claim that people may own ideas." And it seems like maybe now we're agreed on that score...?

 

You take *idea* property to it's logical conclusion, but that's exactly why embodiment is critical here.

 

I do take the arguments Rand (and others) have made to their logical conclusion, as I think that's a good way to test the merits of those arguments... but I do not do this in the way you imply. I am not dropping the context of the arguments made, not even Rand's requirement that an idea must be embodied before it can be protected. Or if you would like to continue to contend that I'm doing that, please show me where I argue against IP as whatever it is you think a "bodyless idea" looks like, or against IP as a discovery. I haven't done, I don't think. I've argued against IP specifically as expressed by Rand, Mossoff, and the people in this thread.

 

"To treat property as alone the work of the mind, ignoring the physical labor equally necessary to create that property, is to mistake what wealth is, why it is necessary and a right, and how men come by it in reality." I agree. But, I also add that ignoring the intellectual labor is just as bad. Perhaps you aren't ignoring it...

 

"Perhaps" I'm not ignoring the role of intellectual labor in the creation of property...?

 

[Property creation] 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.

[...]

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.

 

Perhaps I'm not! :)

 

...but the indicator of when something is property is only when something is made. So, let's go back to Franz, this time in 1867, and think about what it would be like if we only look at the material aspect.

So, everything about Franz is mostly the same. He's still a brilliant piano maker. This time, in 1867, he is capitalist and owns a factory thanks to the industrial revolution. He has quite a lot of money for machines to build his fine pianos with a method he developed. That means he also has laborers to work the machines, and pays them fairly. Wolfgang wants to buy a piano from Franz, so a piano is sent down the production line. Sergei is working there today, using the machines to build the pianos. This machine is not easy to operate, so to some degree, Sergei uses his mind to create. Still, the piano is based on Franz's blueprint.

 

And more important than that, Sergei is operating in Franz's employ! They have come to a contractual understanding that the pianos that Sergei builds are Franz's property.

For after all, we may imagine Sergei building this very same piano on his own time, twenty years later (or however long you believe a patent should remain in effect), and then it does not matter at all whether he is following Franz's blueprint (insofar as he has come to have this blueprint legally, which is itself property). We would recognize the piano that Sergei builds as being his own.

 

Sergei builds the piano, then Franz tells him that it needs to be sold. Today, Sergei feels indignant, frustrated that this whole time, he owns the pianos he built with his hands. Ever since reading Das Kapital, he's been this way.

 

Yes. That's right. I'm a Marxist, Eiuol, well-spotted.

 

"Why should Franz own these pianos? He only has some stupid blueprints", he thinks. So, Sergei says to Franz: "No, I won't sell the piano for you. I know I agreed to labor for you, but this piano is mine since I put the work into building it. You are exploiting me, denying me the fruits of my labor!"

 

So can we observe? Sergei has indeed built the piano (or depending on the nature of whatever manufacturing process, he has at least assisted in building the piano), and it is on the basis of providing that labor -- labor necessary for the piano to exist -- that he is trading with Franz in the first place. If Sergei had nothing whatsoever to offer in the creation of one or more pianos, it seems unlikely that Franz would agree to pay a wage initially.

If Franz took the pianos Sergei had built and then also kept the promised wage, then Sergei would be justified in saying that he had been exploited, and denied the fruits of his labor.

 

Perhaps Sergei is too dramatic, but *he* built the piano. All Franz did was draw up some blueprints. How should Franz resolve this? Or is Sergei right that the piano is his own? Franz could say "too bad, you agreed to the job", but Franz is a man of principles - he'd rather demonstrate to Sergei that it is just of him to determine how the pianos may be sold and used even if he never built them.

 

Nope. We can't get to IP from here. The reason why Franz owns the piano, despite Sergei's having built it, is because they'd already had an understanding (i.e. a contract) that things would proceed in this very fashion: Franz would allow Sergei use of Franz's property for the purpose of building this piano; Sergei would build it; Franz would own the piano; Sergei would get paid a wage.

We can't dismiss this agreement, pretending like it was never even necessary in the first place, and then act as though there's some sensible way of just sorting everything out. Without the agreement, not only would Franz not be justified in claiming the piano that Sergei had built, but Sergei would not have been justified in using Franz's land, machines, blueprints and etc., in building the piano in the first place.

IP is not the question of whether an employee owns what he builds, despite having willingly entered into a contract (expressed or even implied) by which he trades his labor and interest in the object of creation for a wage. It is the question of whether some other person -- we'll call him Joseph -- who has never heard of Sergei or Franz, but builds a piano of his own, without having seen (or even known of) Franz's blueprints, let alone having entered into some sort of contractual arrangement, has the right to that piano? Or whether Joseph's piano may be deemed similar to Franz's piano such that Franz now owns Joseph's piano, too.

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Assuming an LFC society, under consideration of IP ( and derivatives copyrights, brands, trademarks ect) why would Franz own Joseph's piano? I would say he has the recognized right to enforce his registration of his idea ( an implied 'ubercontract' ) in the marketplace. Franz should not be able to claim as his property any piano Joseph builds, whether Joseph created the design independently or reversed engineered Franz's idea. But since Franz has his piano idea duly recognized as the first instance of an original idea, Franz should then have the ability to restrict Joseph from using this same piano idea for profit.

Edited by tadmjones

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Assuming an LFC society, under consideration of IP ( and derivatives copyrights, brands, trademarks ect) why would Franz own Joseph's piano?

 

Because the arguments for IP made by Rand, Mossoff, etc., and current federal law as written (so far as my investigation has led me to believe), would prevent Joseph from building such a piano, even for personal use.

You may think they're wrong about that, just as I think they're wrong about IP altogether, but that is the case that they have made.

 

I would say he has the recognized right to enforce his registration of his idea ( an implied 'ubercontract' ) in the marketplace. Franz should not be able to claim as his property any piano Joseph builds, whether Joseph created the design independently or reversed engineered Franz's idea. But since Franz has his piano idea duly recognized as the first instance of an original idea, Franz should then have the ability to restrict Joseph from using this same piano idea for profit.

 

But sure, we can look at IP as only being a marketplace restriction. You say that "Franz should then have the ability to restrict Joseph from using this same piano idea for profit," but why? What is the source of this ability? Why should Joseph not be allowed to profit from his own labor? Now you need to make your case.

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Again assuming a Gulch-like society, how could IP be anything other than marketplace restrictions? I see no other context outside of a rational division of labor society where IP has any relevance. Franz's ability to restrict Joseph's actions as it concerns Franz's duly recognized and protected idea is I think easily understandable. Rand gave capitalism its moral justification, what is immoral within the context of a rational society about protecting commercial property, eg ideas that are duly recognized as original and unique(not discoveries and/or explanations of natural phenomenon)? I can see how attention would need to be focused on how these procedures were implimented, but not why the principles on which they are based are on face .. what immoral, unnecessary, invalid? 

 

Just as Franz's right to be free of harm caused intentionally by another can only be recognized and protected when that freedom can be violated (living in a society), so too can his right to gain from his ideas(property) only be protected when faced with possible violation. Freedom from intentionally caused physical violence and IP infringement are only possible in a societal context. On a desert island Franz may be said to 'have' those same rights, but it is only when it is possible to have his rights violated that a need for their 'protection' is relevant.

 

Oh and not sure if it will muddy or clarify my stance but I see Franz as an originator, Joseph as a copycat(whether from not filing timely, or intent) and Sergei as a commie( I don't like commies)

Edited by tadmjones

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"The question of IP is not whether a given mp3 is protected property or not -- it absolutely is -- but whether the information encoded by an mp3 (i.e. the "idea" of it) is protected."

 

Okay, then what about an mp3 is validly protected? An mp3 only exists as encoded information, so I don't know what about an mp3 you say is property. I want you to be explicit here. In fact, a lot of justification regarding IP involves how an mp3 is property and only as encoded information. Can you clarify?

 

As for joking that you believe in a world without rights, that's not what I did. I'm saying you don't think that at all, but I wanted to be clear that I think you don't believe that (unlike Thomas earlier on).

 

And no, I don't think you're a Marxist. I think of you as Franz, and Sergei is the communist. Sergei is claiming he owns the piano. So, if you are Franz, how will you respond? I think you're response is that by contract, Franz has the right to dispose of the pianos. I have time next week to write up Sergei's response to you as Franz.

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Again assuming a Gulch-like society, how could IP be anything other than marketplace restrictions?

 

By asserting that, when one man "owns an idea," then another man does not have the right to use that same idea without permission. So: if I own the piano, or a particular style of piano, or however we're framing my "intellectual property" over pianos for the purpose of this example, you are not within your rights to build one.

And I feel like I need to keep on making this clear, but this is not my argument. It is Rand's argument. It is Mossoff's argument. It is (presumably) Thomas's argument. Rand says (with my emphasis):

 

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.

 

If you build a piano over which I have some intellectual property right, that piano is an "unauthorized reproduction," "forbidden" per IP. You may not do that -- use the value which I have originated -- without my consent.

 

I see no other context outside of a rational division of labor society where IP has any relevance.

 

I thus far see no context where IP is either valid or moral. But if it were valid and moral, based on the rationale offered by Rand, Mossoff, and others, then I don't know how we could draw such a distinction between "the marketplace" and personal use. For beyond Rand's claim that the originator should simply have control over how the value he has created is subsequently used -- whether in or out of the market -- it remains the case that one's personal use itself has consequences for the market.

Specifically, if you build your own piano, though never intending to sell it or etc., you are denying me my "right" to sell that piano to you. You are thus depriving me of the "value" of my invention, which is held to be the same thing as depriving me of my property, as such.  (Again, not my claim... but that is the claim under consideration.)

 

Franz's ability to restrict Joseph's actions as it concerns Franz's duly recognized and protected idea is I think easily understandable. Rand gave capitalism its moral justification, what is immoral within the context of a rational society about protecting commercial property, eg ideas that are duly recognized as original and unique(not discoveries and/or explanations of natural phenomenon)? I can see how attention would need to be focused on how these procedures were implimented, but not why the principles on which they are based are on face .. what immoral, unnecessary, invalid?

 

Well, that's the central question before us. I agree that capitalism is moral, but I do not agree that IP is properly part of capitalism. I do not agree that it is a right. And if it is not a right, and thus not properly part of capitalism, then it would indeed be immoral and invalid, being itself the initiation of force and the violation of other, actual individual rights.

And then there is a further a question as to how IP is to be implemented, and whether it can be done so objectively according to the criteria Rand laid out:

 

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.

 

I do not think that this describes IP, either as practiced, or even as advocated by anyone, so far as I've seen and so far as I know. Not only have we not yet made the case for an objective implementation of IP... I don't think we've even established that it can be done. Come to that, Rand says:

 

That which cannot be formulated into an objective law, cannot be made the subject of legislation—not in a free country, not if we are to have “a government of laws and not of men.” An undefineable law is not a law, but merely a license for some men to rule others.

 

And beyond justifying IP as such, in terms of the implementation of IP? I think that this is absolutely where we are, and with no principled arguments in sight to suggest anything different for the future.

 

Oh and not sure if it will muddy or clarify my stance but I see Franz as an originator, Joseph as a copycat(whether from not filing timely, or intent) and Sergei as a commie( I don't like commies)

 

No one likes commies.

Joseph is not a "copycat" in any rational sense of the term if he builds his piano independently from knowing Franz or Sergei or their work (not that it matters to IP). But on the subject of "copying," I think I've made the case that it is likely an anti-concept, and an assault on "learning," which is a... fairly important activity, as far as they go.

 

"The question of IP is not whether a given mp3 is protected property or not -- it absolutely is -- but whether the information encoded by an mp3 (i.e. the "idea" of it) is protected."

 

Okay, then what about an mp3 is validly protected? An mp3 only exists as encoded information, so I don't know what about an mp3 you say is property. I want you to be explicit here. In fact, a lot of justification regarding IP involves how an mp3 is property and only as encoded information. Can you clarify?

 

I don't have expertise when it comes to computers, so I don't know to what extent I'll be able to discuss this reasonably, but the mp3 is, itself, property. As in: if you were to come to my computer and delete my mp3, making it so that I no longer had it, you would be violating my property rights. The mp3 exists as something physical, and it is that thing which I own (just as I could own a cassette tape or a record or bound sheet music).

However, if you were to hear the music that my mp3 allows me to play (through legitimate means; perhaps you're at a party at my house, and the song plays) -- and thereby access the information encoded by that mp3, which is the music -- and then you started whistling the tune to yourself, or wrote down the notes, or played them at the Royal Albert Hall with the London Symphony Orchestra backing you, that would not have to do with my property, which is the mp3, still on my computer.

 

As for joking that you believe in a world without rights, that's not what I did. I'm saying you don't think that at all, but I wanted to be clear that I think you don't believe that (unlike Thomas earlier on).

 

And no, I don't think you're a Marxist. I think of you as Franz, and Sergei is the communist. Sergei is claiming he owns the piano. So, if you are Franz, how will you respond? I think you're response is that by contract, Franz has the right to dispose of the pianos. I have time next week to write up Sergei's response to you as Franz.

 

Okay, good to hear. I believe very much in rights -- in upholding them absolutely, in fact, which is why I'm here arguing against Rand's position on IP, which I believe is actually the abrogation of rights.

And it should be fun to hear what Sergei has to say. In real life, I've long grown weary of trying to discuss anything with actual Marxists; in my experience, they are typically so dishonest in thought and method that it is impossible to gain any traction. So I like the idea of your trying to make their argument for them, regardless of whether it actually pertains to IP.

But listen, you had earlier agreed to explain why the cat exercise patent was "terrible," and I'm still waiting for that. I'm happy to continue on with Franz and Sergei (and Joseph needs some love, too; does his piano belong to Franz by right, in your estimation?)... but I would like it if you occasionally responded to the examples I raise, or answer the questions I ask. It would go some way to demonstrating that you're making an effort to understand and assess what I'm trying to communicate, and I expect that it would help me to see where we disagree (and maybe why, too).

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DonAthos in #98 said

By asserting that, when one man "owns an idea," then another man does not have the right to use that same idea without permission. So: if I own the piano, or a particular style of piano, or however we're framing my "intellectual property" over pianos for the purpose of this example, you are not within your rights to build one.

No you misinterpret my position. I say anyone can manufacture a piano(Franz's piano) but if Franz has had his design duly recognized as being his design then no one else can expect to offer Franz's idea inhe marketplace for profit. It is Franz's right to enforce the protection of his rights in property in the marketplace as it concerns his duly recognized and protected right to own his design. I do not think this means that Franz has any right to stop Joseph from making a physical copy that embodies his(Franz's) idea, just that if Joseph then tries to profit from Franz's design, that Franz would have the ability to restrict that action on Joseph's part either by being compensated for the profit, or even that Franz may decide to not seek restitution, I am only here concerned with protecting Franz's objective moral right to his property joseph's actions have to be judged as after effects of the origination of Franz's ideas being expressed. I am way pro franz and ambiviolent to Joseph the usurpar.

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