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Intellectual Property: A Thought Experiment

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It dawned on me earlier in the week that the ship of Theseus thought experiment has a great deal of application to intellectual property questions, at least if I modified it a little (turns the modification is like a modification by Thomas Hobbes). A ship is being re-built one piece at a time, and I find that little analysis is needed to conclude that rebuilding the ship in the same way with the same pieces means it is still the same ship. Theseus still owns the ship, it’s the same type of ship, the ship is used for the same purpose, etc. I think that is like Aristotle’s solution to the original problem, at least according to Wikipedia. In addition to all that, it is still property of Theseus. But not because it’s made of the same pieces, therefore, any resulting artifacts will be his! To frame it another way, I’ve seen some people argue against IP by saying “if I build something with materials I own, then I own whatever the resulting artifact is – even if the inventor wants to prevent me from doing so”. My point is that Theseus still owns the ship because of the purpose and particular implementation of an idea still remains, despite the obvious physical transformation. But I want to go through this with a modification of this thought experiment that I came up with: the Piano of Franz. (Yes, that same Franz if you remember an earlier thread, but it’s quite different).

 

Franz has a specific blueprint to build pianos, which are special kinds of pianos with building specifications that Franz developed after figuring out new techniques to bring out important acoustic qualities. His brand of piano is distinct. Right now, he has only built one piano – he needs investors first. Recently, he took the piano apart and will rebuild it, to make sure his blueprints were perfect. The pieces are organized on the floor, and Franz can rebuild it with his blueprints. He goes piece by piece, until it is complete.

 

Does Franz own the piano? This part so far is deliberately simple. I would bet most people say yes, Franz owns the piano. The reasons, though, may vary. As I said, I don’t think it’s just because he owns the individual pieces. The stance I take is that he owns the coupling of an idea with the corresponding physical goods made from that idea. Keep in mind, since property is what one needs to maintain their existence, and by extension, their flourishing. (I’m skipping a lot of inductive steps, I know, I can’t write a book here.) To be able to define what is actually part of maintaining one’s existence (as related to their personal evaluations and decisions), we need to have a reasonable constraint to its range of application. This way, claims to property can be objectively evaluated. A range of application isn’t as simple as saying a physical boundary. That may apply to a basketball, but not an open cattle range - there is no intrinsic boundary to land. Some degree of value is needed as well, otherwise there would be no need to recognize any existents in a special way with regard to individuals.

 

I would argue that the pieces are of no value to Franz anyway, and the value only comes from the fact he knows how to build his brand of piano. Although I’m sure Franz can build other styles of piano that are very old, the pieces are for making a Franz brand piano. So, you couldn’t say “the pieces have infinite uses, why focus on a piano brand?”  Building a treehouse is not his intention. In this sense, his pieces are only of value because of what he wants to create. Franz could sell the parts for a price, but since no intrinsic monetary value of goods exist, I can say that relative to him, there is no monetary value. The value is in the potential piano, similar to how value of farmland is potential crops. No actual piano exists, so what I’m getting at is that the property in question is intellectual in nature, not merely concrete existents.

 

Let’s modify this a little bit. Suppose Wolfgang saw Franz’s blueprints, and Franz said nothing special to Wolfgang about building a piano. Unbeknownst to Franz, Wolfgang acquires the necessary pieces to build the piano. Later on, Franz visits his friend Wolfgang’s house after hearing beautiful piano music. When he greeted Wolfgang and saw the piano, he realized it was his own piano that he designed! Franz finds this to be unjust and even as theft, because it was his design and creation.

 

Should Franz have the right to bring Wolfgang to court if he so chooses? In the earlier case, if Wolfgang took a finished piano or even the piano pieces without permission, that is a clear case of theft, and should be taken to court. But where does the difference come in with Wolfgang creating a piano with his own materials? An easy answer is to say that the two pianos are not exactly the same, so inventing a type of piano does not imply owning pianos that Wolfgang (or anyone else) creates. People own what they make, and it follows that what they make is their property, fitting all the standards I mentioned earlier with constraint to range of application.

 

My answer is that there is no difference, except perhaps what the property in question is. The easy answer I find to be too materialistic by ignoring the very means and person that enabled Wolfgang to build the piano. Franz did a lot of research, then took time to develop the specific piano design. He had to figure which wood to use, how to bend the wood, how to set up the curves, etc. The whole value of the piano is in every case dependent upon what Franz developed. Other people even find value in the piano. To the extent that the design is useful to many people, not just the piano itself, there is reason to say Franz should have the right to control the design in any manner he chooses – who can use it, how he wants to profit from it. If anything, the usefulness and value to multiple people makes a design worth recognizing as property, especially since Franz designed it for the reasons anyone would create or seek property. The value a variety of people hold towards the piano is indicative that at least some people find the piano design a contributor to flourishing, even for Franz. In ethical terms, this means Franz has a right to his designs and what people may make from those designs, or to shorten the phrase down, intellectual property.

 

In the same way that rebuilding the ship of Theseus still means the ship is owned by Theseus, rebuilding Franz’s piano still means the piano is owned by Franz, even if the result is more than one tangible Franz brand piano.

 

*

 

Aside: I first thought of all this by watching a

but a totally different topic. Spiral theory of knowledge! Edited by Eiuol

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All of the details are not available, but this is parsed events derived from an international incident.

 

A component of a larger assembly was manufactured by company B for company A.

 

Per an agreement between company A & B, the component was warrantied for a specific duration.

 

Company A began having warranty issues with component B and turned to company B for service.

 

After investigation by company B for the cause of failure, it was discovered that a process had not been performed to one of the sub-components of component B. More investigation revealed that the process had not been omitted or inadvertently missed by company B in their manufacture of the component.

 

Company X had taken the original component and reverse engineered it. They were able to capture the shape, material and how to assemble the parts. They could not or did not replicate the steps needed to ensure durability.

 

Company B had to incur the cost of discovering this.

Components were purchased from company X instead of company B.

Company A's reliability is called into question in the consumers mind.

 

These may well be neglected aspects worthy of inclusion of the ongoing analysis and/or thought experiment.

Edited by dream_weaver

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Why do you think the morality/legality distinction is important here? I already explained how I think IP is the same as any other kind of property, so it should be treated like land or objects. I gave reasons why the concept of IP matters. I also explained why it deserves legal protection.

Edited by Eiuol

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Why do you think the morality/legality distinction is important here? I already explained how I think IP is the same as any other kind of property, so it should be treated like land or objects. I gave reasons why the concept of IP matters. I also explained why it deserves legal protection.

 It was just something I thought might be relevant; I'm not asserting anything in particular, at the moment.

 

Let me ask you this.  To what extent did Franz invent this piano?  Obviously he didn't invent pianos as such, nor the harpsichord, so how distinct is his piano?

Because if it's a specifically unique type of piano then Wolfgang could've simply saved himself the trouble and built a generic one, right?

If so, then he couldn't have built what he did without Franz [that's clear; no contention there]. . . But he could've come so very close that what was actually stolen is comparable to the difference between Rock Band and Guitar Hero, and what Franz should really be due is the exact monetary difference therein.

 

But what if Franz did something truly fundamental, something like the wheel or the harpsichord or the light bulb, then couldn't he patent that and be entitled to THAT difference (electric lights versus candles)?

 

Now, let's say Franz doesn't want money (because that's a rather huge assumption to make about him); what if, instead, he demands that Wolfgang burn the illicit piano?  Kosher?

 

I would like to know the specifics.

WHAT is patentable and what isn't (by what stantards); WHO is entitled to WHAT accordingly and HOW can it all be enforced?

Edited by Harrison Danneskjold

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Actually, never mind.  Sorry; it's too late to just edit the previous post but, in retrospect, I've just asked a lot of questions that don't contribute anything and don't amount to anything more than distractions.

And the morality-legality suggestion was just something that went through my mind as I was reading the OP; I didn't bother to think it through at all and, while it may yet be something relevant, it has nothing whatsoever to do with your point.  (typing before thinking. . . Again.)

 

I do think the Ship of Theseus is a precise and elegant example of the disconnect we seem to be having; I think you identified exactly what that problem is.  I'm not sure how it all fits together yet, which is why I really shouldn't have said anything yet, but I'll get back to you on that.

So again, I'm sorry about that and please don't respond to the previous unless you really want to.

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Sorry if this is long-winded, but there's a lot in there. Okay so, Ship of Theseus. It’s an interesting analogy because I think it gets quite down to the heart of what justifies property rights. If we’re going to justify property rights in something, we have to justify them in terms of treating violations of them as being acts of aggression (taking for granted already the right not to have force initiated against you.) So in asking what kind of property rights are there, it will be necessary to show that right is an instance of, or application of the right not to have force initiated against you. So the question is how to do that with property rights, be they external (tangible) objects, and also intellectual objects (patterns, formulas, artistic works, designs, whatever.)

 

So in order to do this, you have to create some story whereby my life and flourishing is somehow related to this object, such that if you appropriate those things, you are appropriating me. Therefore prohibition on initiating force against me will extend to a prohibition on appropriating my stuff.

It is in this sense that I see a reconciliation of eudaimonistic account of morality with a libertarian account of self-ownership, since self-ownership is justified in terms of flourishing, then in order to justify external property rights of any kind [including IP], one then has to ground them in self-ownership, and a general Lockean account of “mixing labor” (production/creation of value), ie., homesteading and title transfer, will pass this test. Therefore I think a similar productionist-homesteading account, such as can be found in Spooner and Rand can work for IP.

 

And this is basically how I think the story of justifying IP will work. One has to create a story whereby one owns the pattern or design or whatever itself due to the fact that one created it, and one has a right to the products of one’s labor, there being no distinction between mental and physical labor, and tangible and intangible property.

 

Now such a derivation will obviously rule certain things out, such as communistic theories of property, “public property,” most existing land claims, claims by some such as Spencer and George that one either can’t own land, or only own improvements to land, or mutualist claims about absentee ownership, etc.

In the Ship of Theseus example, one can use the analogy of one’s own physical body. If I own m self, then I must own the particles of which my body is composed. Our bodies as currently existing are not the same as they were at birth in the same way as the Ship of Theseus. What we have done is gradually incorporated preexisting particles into our bodies by eating, drinking, inhaling, etc. Our bodies have the same formal, material, final, and efficient causes in Aristotle’s terms, and yet they are not the same particles post-birth. Shall we then not own our bodies because the particles comprising it have been replaced by various preexisting external particles?

 

But on the story above that I just gave, my relationship to the particles I am made out of is such that I count as owning those particles. And the same with Theseus’ Ship and Franz’ piano, which is why I don't think IP is necessary to explain their ownership (more on that below.)

 

Now this brings me into two areas of disagreement with your story about how they own them.

 

1. You point out that one may object to the kind of story I have given about IP by saying “if I build something with materials I own, then I own whatever the resulting artifact is – even if the inventor wants to prevent me from doing so.” In other words, someone may say “you say we own the products of our labors, and yet I did so labor and I own these various raw materials. They are legitimately my property under your Lockean homesteading/title transfer theory. I also own the information in my head, that is not disputed (he did not steal or fraudulently acquire the design.) So when the inventor attempts to prevent me from organizing these materials which I own in such a way that is according to his designs, he is preventing me from acting peacefully with my own property. Therefore property rights in material objects are incompatible with IP rights.” Or as Stephan Kinsellla sums his case up:

 

IP rights give to pattern-creators partial

rights of control—ownership—over the tangible property

of everyone else. The pattern-creator has partial ownership

of others’ property, by virtue of his IP right, because

he can prohibit them from performing certain actions with

their own property. Author X, for example, can prohibit a third

party, Y, from inscribing a certain pattern of words on Y’s

own blank pages with Y’s own ink. [Therefore] intellectual property

rights and real property rights are incompatible.

 

So to overcome this, you say: “My point is that Theseus still owns the ship because of the purpose and particular implementation of an idea still remains, despite the obvious physical transformation.” I interpret your answer to say that (using the Wolfgang example) since the object being built (the piano here) has the same form or design and purpose, then despite the fact that Wolfgang is using his property (his raw materials), Wolfgang is still appropriating the value Franz created in the piano design, value which Franz owns (in accord with your earlier argument in paragraph 3.)

 

Well, I think this is on the right track, but I wouldn’t entirely agree with it. I don’t think you can own value, just the physical integrity of property. In terms of IP, then you would own the physical implementation of the pattern or design. (No you don’t own the mere thoughts of your pattern or design in other’s heads, contra was many have been claiming for some reason.)

 

In anyways, your argument here is not needed to deal with the objection. The objection states that IP interferes with the usage of other’s tangible property by preventing them from using it in ways that violates your IP. Kinsella even states:

 

[The inventor] instantly gains a right to control all other tangible

property in the world, with respect to that property’s

similar use.” This [principle] is

so powerful that it gives the creator rights in third parties’

already owned tangible property…[such that the] inventor can

prevent all others in the world from [using it in ways that copy his design.]

 

The simple answer is that this is question begging. All property rights will have repercussions with respect to what third parties are allowed to do with respect to their property’s use, even all others in the world.

 

If you prevent me from stealing your car, you have restricted my freedom of choice with my property (e.g. with my screwdriver that I used, or at least with my physical body.) And if I am free to take your car, your freedom of choice over that object (the car) is restricted. The point is that we cannot assess what choices people should have available to them without knowing what rights people have. Any assignment of rights will restrict someone's control over some object. If I own the design, pattern, artistic work, etc. then that ownership is sufficient enough to establish an enforceable claim to prevent you from appropriating it with your own property.

 

So the question will always come down to justifying whether property rights extend to these intellectual creations themselves. Your story about this appears in the following paragraph,

 

The stance I take is that he owns the coupling of an idea with the corresponding physical goods made from that idea. Keep in mind, since property is what one needs to maintain their existence, and by extension, their flourishing. (I’m skipping a lot of inductive steps, I know, I can’t write a book here.) To be able to define what is actually part of maintaining one’s existence (as related to their personal evaluations and decisions), we need to have a reasonable constraint to its range of application. This way, claims to property can be objectively evaluated. A range of application isn’t as simple as saying a physical boundary. That may apply to a basketball, but not an open cattle range - there is no intrinsic boundary to land. Some degree of value is needed as well, otherwise there would be no need to recognize any existents in a special way with regard to individuals.

but I don’t think I fully grasp it. What do you mean “have a reasonable constraint to its range of application” and what do you mean “Some degree of value is needed as well” maybe if you could clear up the wording on this, it would be easier for me to grasp.

 

2. My second beef is regarding the example of Franz’ piano pieces on the floor before he reassembles them. You state that you “don’t think it’s just because he owns the individual pieces.” Just as with Sergei the communist before, resort to IP isn’t needed to explain Franz’ ownership of the piano before, the resultant pieces, and the reassembled piano after. Franz’ ownership can be explained by using the homesteading/title transfer rules without resort to the mental labor or creation of the design, therefore I don't think this particular argument of yours works.

 

Kinsella gives the following example:

Consider the forging of a sword. If I own some raw

metal (because I mined it from ground I owned), then I

own the same metal after I have shaped it into a sword. I

do not need to rely on the fact of creation to own the

sword, but only on my ownership of the factors used to

make the sword. And I do not need creation to come to

own the factors, since I can homestead them by simply

mining them from the ground and thereby becoming the

first possessor.

 

Franz’ ownership can be explained by using the homesteading/title transfer rules without resort to the mental labor or creation of the design, therefore IP is not needed to rescue Franz from Sergei or from his reassembled piano. Or the rebuilding of Theseus ship: he owns the raw materials, so he owns the ship, even if there is one whole “new” ship, and only whole “original” ship (in the Hobbes version.) The question of IP only comes into play during your final Wolfgang scenario (all other examples have nothing to do with IP, I would say), when Wolfgang tries to fashion the piano according to Franz’ design (assuming he did not steal or fraudulently acquire the designs) with his (Wolfgang’s) own raw materials. Only establishing a story that ties Fran’z self-ownership to his creation of the designs, and relates it in such a way that appropriating the designs is appropriating Franz’ extension of himself and is thereby an initiation of force will do. And I’m not sure if your argument successfully does that.

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In terms of IP, then you would own the physical implementation of the pattern or design. (No you don’t own the mere thoughts of your pattern or design in other’s heads, contra was many have been claiming for some reason.)

 

If I am one of the "many" that you mention, as I am sure that I am, then this is a perfect demonstration of how you did not trouble yourself to understand what I was saying in another thread before replying and disagreeing and accusing me of dishonesty.

I was not saying that you somehow own a pattern in someone else's head, whatever that's supposed to mean (i.e. you can extract their brain chemistry, or file an injunction against their thinking about something??). But if you own "the physical implementation of a pattern or design," it is necessarily because you own that pattern or design, itself, or "the idea of it." Saying that you somehow own that "physical implementation" without also owning the immaterial pattern or design itself -- without somehow having a property stake in the idea that stands behind all physical instances -- is a semantic dodge. It is meaningless. It is an evasion.

But have at it, to your heart's content. For if you can say this

 

So the question is how to do that with property rights, be they external (tangible) objects, and also intellectual objects (patterns, formulas, artistic works, designs, whatever.)

 

and

 

So the question will always come down to justifying whether property rights extend to these intellectual creations themselves.

 

and

 

Only establishing a story that ties Fran’z self-ownership to his creation of the designs, and relates it in such a way that appropriating the designs is appropriating Franz’ extension of himself and is thereby an initiation of force will do.

 

without recognizing that we are already discussing the same fundamental thing -- the ownership of ideas -- then it can only mean that you are determined not to recognize that fact, and will continue to distort what I have said.

But yes, your subsequent disagreement with Eiuol here

 

I also own the information in my head, that is not disputed (he did not steal or fraudulently acquire the design.) So when the inventor attempts to prevent me from organizing these materials which I own in such a way that is according to his designs, he is preventing me from acting peacefully with my own property. Therefore property rights in material objects are incompatible with IP rights.

 

and here

 

I don’t think you can own value, just the physical integrity of property.

 

and here

 

2. My second beef is regarding the example of Franz’ piano pieces on the floor before he reassembles them. You state that you “don’t think it’s just because he owns the individual pieces.” Just as with Sergei the communist before, resort to IP isn’t needed to explain Franz’ ownership of the piano before, the resultant pieces, and the reassembled piano after. Franz’ ownership can be explained by using the homesteading/title transfer rules without resort to the mental labor or creation of the design, therefore I don't think this particular argument of yours works.

 

all essentially agree with the very same arguments I have been making, with respect to both IP as such, and also Eiuol's flawed understanding of the concept (as evidenced by his examples which do not actually touch upon what makes "intellectual property" distinct from property as otherwise understood).

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 all essentially agree with the very same arguments I have been making, with respect to both IP as such, and also Eiuol's flawed understanding of the concept (as evidenced by his examples which do not actually touch upon what makes "intellectual property" distinct from property as otherwise understood).

For the record, the original post isn't *about* what you said or didn't say. It's a fresh discussion not directed what you argued at all. I think 2046's point was that "some people" literally meant any number of people on the Internet. In any case, I'd rather you address the thought experiment directly. At which point do you agree or disagree? Do you disagree on how I described property? Do you disagree about the *reason* I said Theseus would still own the same ship? How does my thought experiment change when you take away the immediately concrete re-building and use a *duplication* instead? Answer any or all of these questions - or anyone else for that matter. Expect a long post tomorrow, hopefully aimed at all the posts so far.

 

Dreamweaver, I liked that addition you gave. I think it's a bit soon to discuss that example, but it does show how *integrity* of certain ideas is worth considering. I think information integrity only makes sense for ideas that have a corresponding physical implementation. How to build a certain piano has information integrity with regard to evaluating the nature of a product. Evolution as a theory is not dependent upon any kind of integrity, it's just an evaluation of facts whose truth is not affected by beliefs.

 

Forgot to add: "Saying that you somehow own that "physical implementation" without also owning the immaterial pattern or design itself -- without somehow having a property stake in the idea that stands behind all physical instances -- is a semantic dodge."

Not really. IP is supposed to be a "one-to-many" relation. One pattern/design applies to multiple physical implementations (one piano design, many corresponding pianos). Furthermore, there must be at *least* one member in both parts of the relationship. So, I guess it is fine to say idea ownership, as long as you keep in mind the relationship that I mean in this context. IP isn't tenable without a relationship with physical implementations. Ideas as such would mean no relationship is implied.

Edited by Eiuol

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For the record, the original post isn't *about* what you said or didn't say.

 

For the record, I didn't say that it was. For the record, I wasn't replying to you.

 

I think 2046's point was that "some people" literally meant any number of people on the Internet.

 

How interesting, that you think that was 2046's "point." Maybe he will choose to agree with you, should he speak for himself? And yet, I would continue to believe that he intended his remark as I have indicated.

 

In any case, I'd rather you address the thought experiment directly.

 

There are any number of arguments or examples I raised in that earlier thread that you never responded to, directly or otherwise, while I endeavored at length and cost to address every last thing you wished (including third party material, and other peoples' posts, and etc). I asked both publicly and privately for you to do the same in return for me, even paring down my repeated requests to one or two items, and even eliciting private agreement from you... but it never came to pass.

 

You eventually settled on calling me a communist, then acting as though you didn't intend to do it, and then you called me a communist again (yet still will not own up to it). I feel no particular obligation to do what you would "rather" me do at this point, since you have not shown yourself willing to pay me those very same courtesies.

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Property rights, like all rights, are a right to action, not objects, materials, etc. Seems like everyone is ignoring this, and treating property rights as the right to materials and objects.

The inference "I own the materials therefor I own whatever I make out of them" is invalid. The correct inference would be "I own the materials, I therefor have the right to freely use them in actions I have the right to perform". This second way to phrase it doesn't say anything about whether one has the right to copy someone else's creations or inventions. I don't think there is any insight to be gained from discussing this from the perspective of who owns what objects used in the action of copying someone's intellectual property.

You are basically trying to deduce a more abstract question of property rights from a more concrete application of rights (the ownership of materials). It can't work: deductions go from the more abstract towards the more concrete. To deduce whether IP is valid (whether we have the right to copy someone's creations/inventions or not) we must look at the more abstract issue of what property rights in general are, and what their purpose is. The argument to make here is that property rights are the right to self-sustaining action, and they serve the purpose of allowing such action. Does IP serve that purpose, or stifle it? I think that's an easy question to answer, and Ayn Rand answered it by noting that the most fruitful, important kind of self sustaining actions are intellectual in nature. We must protect them before anything else, if we are to thrive.

 

...No actual piano exists, so what I’m getting at is that the property in question is intellectual in nature, not merely concrete existents.

...

I agree with everything you are saying, but I think it's a terrible way to phrase it.

It would be so much better to keep references to owning objects to a minimum. Yes, we can in fact say "I own that chair" to mean that "I have the right to use that chair to perform actions I have the right to perform (life sustaining actions)". But, when said to people who don't know what rights are, "I own that chair" sounds like "I can do whatever I want with that chair". When you say, "I own the design of that piano", it's even more confusing, because even fewer people understand what the right to use intellectual property means.

Even the people who understand that when you say "I own that chair" you aren't suggesting that you have the right to climb the Empire State Building and drop it out the window, don't understand that when you say "I own that piano design" you aren't suggesting that you have the right to obtusely lock it away, and never ever allow anyone to build or use it in any way, under any conditions. They don't understand that what you actually mean is that "you have the right to set reasonable, legally prescribed (in laws that direct the functioning of patents) conditions on how the design may be used and how you can be compensated for its use.

People own what they make, and it follows that what they make is their property, fitting all the standards I mentioned earlier with constraint to range of application....

Again, I agree with the message. But not the phrasing. The "constraint to range of application" isn't a constraint on how the materials you are referring to ought to be used. It's actually a constraint on the person doing the using. It's a constraint on what legal, rightful actions are.

That's where that constraint comes from: you do not have the right to copy someone's creations and inventions. This is not due to anything about the nature of the materials, or the supposed ownership of designs. It's because of the nature of the far more abstract concept of property rights.

The way I would phrase it is "People own what they make, so long as they acted withing their rights through the process of making it". If they didn't, the victims of their rights violating actions have the right to sue for damages (punitive or restorative damages - NOT the confiscation of the object itself - in fact, most often these damages are either below or above the value of the object that was created, the two rarely happen to coincide).

As far as the concrete example, my disagreement is with the suggestion that Wolfgang doesn't own the piano he made. He owns it. He just owes Franz some cash, because he made it by violating Franz's rights. In this case, it would likely just be restorative damages (whatever Franz's profits are off of making and selling a piano), though individual justice systems might impose punitive damages too (twice or three times those profits, usually). But this is a minor disagreement, and hardly the crux of the issue, which is in where we deduce the principle from: the more abstract principle of rights, or the more concrete application to objects, materials, designs, etc. I think it's the former, everyone in this thread is hard at work on deducing it from the latter.

Edited by Nicky

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You eventually settled on calling me a communist, then acting as though you didn't intend to do it, and then you called me a communist again (yet still will not own up to it). I feel no particular obligation to do what you would "rather" me do at this point, since you have not shown yourself willing to pay me those very same courtesies.

No, I didn't... I'm sorry the humor failed and you took it as an insult. That is sincere. I was criticizing an idea, not who you are a person. But I called the value of anti-IP like I see it. If that's too judgmental, there is nothing more to say. I did not call *you* anything, but I can't force you to believe me that it was not an underhanded insult. I don't want to make this into another set of personal defenses though, so I'll leave it at that. 

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No, I didn't... I'm sorry the humor failed and you took it as an insult. That is sincere. I was criticizing an idea, not who you are a person.

 

Well, all right. Let's say that you are being sincere here -- because I want nothing so much as to be able to believe the people whose company I keep. If this is so, then perhaps there's an opportunity here to reflect on discourse, not just for you or me, but more generally.

In a recent private conversation, another member of the board asked me why I don't call people out on their fundamental irrationality more often; to identify it by name. I replied that to do so never does any good in the context of a conversation. While it is important to demonstrate the irrationality of irrational arguments, through better argument, labeling my opponents' arguments irrational (let alone saying that they are, themselves, acting irrationally, or are irrational) contributes nothing except that it will be received as an insult and work to shut down the conversation.

Sometimes this is proper. There are deeply dishonest people, with whom conversation will not work under any circumstances, and I believe the best good in those cases often comes from such labeling/identifying that dishonesty and the damage it does (i.e. Delaney). But when you are engaged and sincere in trying to communicate, it is very important to not cast aspersions on either the character or the intelligence of your partner; you must appeal, not to their shame or fear, but to their intelligence and reason. And you must give them room to say, "yes -- I see the reason of what you're saying."

If I were to judge that your arguments on IP are any number of foul things -- irrational, mystical, or whatever -- none of that would matter except that I could show you what I see, and why I see it, such that you can see it, too. And if I were to put some heavy label on your views as I see it (whether or not I understand your ideas clearly), like calling them Kantian, or Fascist, or something like that, I believe it would not help you to see what I'm saying, but would force you into a defensive posture and likely you would feel insulted by it, whatever your intentions. I must believe that you are not at heart Kantian or Fascist or a mystic or whatever, else I would not be having this conversation with you, so I am satisfied that if I can show that your arguments amount to mysticism or etc., such that a rational person could understand that, then you will, too.

To summarize, if you really believe I am advocating communism (though in ignorance), then I would recommend that you work to demonstrate that and trust that I will understand, as opposed to trying to label it in such a fashion that might serve to insult (like, for instance, putting a straw man's version of my views in the mouth of an angry Russian fresh off reading Das Kapital). Or if you don't think that I could understand what is true, even if it were fully demonstrated, then there are deeper problems that need to be addressed before a conversation on IP.

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If I am one of the "many" that you mention, as I am sure that I am, then this is a perfect demonstration of how you did not trouble yourself to understand what I was saying...

Oh god... calm down man, I really don’t get why you’re so worked up about this. You should apply the lesson in that song “I bet you think this song is about you,” last time you assumed I was quoting you when I was obviously (to me anyway) quoting Eiuol, and now you assume I’m referencing you and I have nefariously intended on distorting your argument.

 

There’s a reason why it doesn’t resemble your argument: it doesn’t refer to you. I mean maybe it does, I don’t know, I really have no idea if you were making this argument (“IP = owning other people’s thoughts.”) Don’t you think if I had intended to reference an argument of yours I would just simply say “Don Athos” instead of “many”?

 

Again, I would think this would be obvious, but no doubt just as with my quoting misinterpretation, I am simply guilty of some further nefariousness, what an insufferable loathsome monster I am! In any event, “many” means “many people” in a nonspecific way, as, strangely enough, I have seen a lot of people making that argument in the past. But specifically on these forums, the poster Harrison Danneskjold was making the claim in the “IP with feeling” thread, I think (I have trouble understanding him sometimes.)

 

As for the substance of the claim itself, I do think that is exactly what those who claim “IP = owning other people’s thoughts” intend it to mean, that is, they take IP to mean that you own “their brain chemistry” and, so to speak, you can “file an injunction against their thinking about something,” and they think this a reason to oppose IP. However, since as far as IP advocates in general (or at least libertarian ones) mean IP to be ownership of the physical implementation of the pattern, design, artistic work, etc., then I take such an argument against IP to be a strawman. That’s all I’m saying.

 

Now DA seems to object by saying, well look, you can say that you own the physical implementation of a design, but that’s just a cop out, because you can’t own the physical implementation without owning “the idea of it” [the design], or even the immaterial design itself.

 

Well sure, it depends on what you want to call an “idea.” If by “ideas” you mean “chemicals and electrical signals in someone’s brain” then no. We’ll call this ideas₁. If by “ideas” you mean a “physical implementation of the pattern, design, artistic work, etc.” which we can call ideas₂, then I am okay with saying that IP, at least in the terms I am considering, refers to ideas₂, but not ideas₁.

 

The problem is, I only think ideas₁ actually exist. For example when you say “…without also owning the immaterial pattern or design itself,” I don’t see this as particularly meaningful. There is no “null zone” or immaterial “realm” of ideas, so to speak. If I am right that only ideas₁ actually exist, then owning “immaterial designs” without owning the things they are reified in, or… “physically implemented” in actual tangible objects, a book, a mousetrap, a pencil sharpener, or whatever is either meaningless, or actually does refer to “fil[ing] an injunction against [someone’s] thinking about something.”

 

As far as the rest, we appear to be in agreement. Also note how this kind of mirrors our discussion over the semantics of “government” and “anarchy,” which we were actually able to simply discuss like normal people, but no doubt here the ethics of discourse should be thrown out, as clearly I am an evil evader and should be called all sorts of names.

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For the record, the original post isn't *about* what you said or didn't say. It's a fresh discussion not directed what you argued at all.

That's what I thought anyway. So silly getting all worked up over a discussion about IP of all things...

 

No, I didn't... I'm sorry the humor failed and you took it as an insult. That is sincere. I was criticizing an idea, not who you are a person. But I called the value of anti-IP like I see it. If that's too judgmental, there is nothing more to say. I did not call *you* anything, but I can't force you to believe me that it was not an underhanded insult. I don't want to make this into another set of personal defenses though, so I'll leave it at that.

And also btw, it seemed perfectly obvious to me that you were not, in fact, calling anyone a communist.

Edited by 2046

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Oh god... calm down man, I really don’t get why you’re so worked up about this. You should apply the lesson in that song “I bet you think this song is about you,” last time you assumed I was quoting you when I was obviously (to me anyway) quoting Eiuol, and now you assume I’m referencing you and I have nefariously intended on distorting your argument.

 

Yes, it was silly of me to think you were quoting me, when you said "You say" and then put what "I say" in quotes.

If I said

You say "I love having sex with donkeys," it would be completely far-fetched to think I was quoting you! How could I even get such an idea!? (I'm probably quoting Eiuol!)

I don't care whether you agree with me here, but if you take away anything it should be this: take care when quoting others (which is what you call it when you put quotation marks around words, and then say that someone has "said" those words). If you paraphrase, strive to do so accurately, ascribing a position that the person supposedly "speaking" would agree with. Do not take someone else's description of their views, especially when that description is being contested, and use that as your paraphrase.

The honesty upon which discussion depends relies upon this kind of scruple and attention to detail.

 

There’s a reason why it doesn’t resemble your argument: it doesn’t refer to you. I mean maybe it does, I don’t know, I really have no idea if you were making this argument (“IP = owning other people’s thoughts.”) Don’t you think if I had intended to reference an argument of yours I would just simply say “Don Athos” instead of “many”?

 

I have no idea why you wouldn't identify me versus saying "many." What I do know is that you never bothered to understand what I was saying on the topic, so intent you were on replying and disagreeing, and that when I approached you privately to try to keep things civil between us, your public reply was to accuse me of dishonesty. And then, when I reacted to *that* by saying that it was vile, and hopefully beneath you, you doubled down, peppering your next post with insults and calling me dishonest again. Does that make you an "insufferable loathsome monster"? I don't know yet. But I don't think it says anything good.

 

Now DA seems to object by saying, well look, you can say that you own the physical implementation of a design, but that’s just a cop out, because you can’t own the physical implementation without owning “the idea of it” [the design], or even the immaterial design itself.

 

Well sure, it depends on what you want to call an “idea.” If by “ideas” you mean “chemicals and electrical signals in someone’s brain” then no.

 

Right. But both Eiuol and I reject this description of an "idea" as being the matter under discussion.

 

If by “ideas” you mean a “physical implementation of the pattern, design, artistic work, etc.” which we can call ideas₂, then I am okay with saying that IP, at least in the terms I am considering, refers to ideas₂, but not ideas₁.

 

Not quite. I believe that "ideas" refers to an abstraction. Not any particular "physical implementation," per se, but the pattern or design itself. Not the brain chemistry of any man who thinks about any pattern or design, but ownership over his ability to act upon such an idea.

 

The problem is, I only think ideas₁ actually exist. For example when you say “…without also owning the immaterial pattern or design itself,” I don’t see this as particularly meaningful. There is no “null zone” or immaterial “realm” of ideas, so to speak. If I am right that only ideas₁ actually exist, then owning “immaterial designs” without owning the things they are reified in, or… “physically implemented” in actual tangible objects, a book, a mousetrap, a pencil sharpener, or whatever is either meaningless, or actually does refer to “fil[ing] an injunction against [someone’s] thinking about something.”

 

Actually, if we only discuss ideas1, then that is when I believe that IP must ultimately refer to whether or not a man may own the brain chemicals of another. It is only by appealing to ideas-as-normally-understood/-as-an-abstraction -- ideas in an immaterial sense -- that IP is at all practicable. Here is how I approached this subject in that earlier thread:

 

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.

 

As far as the rest, we appear to be in agreement. Also note how this kind of mirrors our discussion over the semantics of “government” and “anarchy,” which we were actually able to simply discuss like normal people, but no doubt here the ethics of discourse should be thrown out, as clearly I am an evil evader and should be called all sorts of names.

 

Not at all. I wish that the ethics of discourse had been maintained. That's why I reached out to you in private initially; I wish you hadn't rebuffed my effort. I wish you hadn't accused me of dishonesty -- you didn't have to.

If you had approached me here like you had on the subject of government/anarchy, I would have responded like I did there, and in kind. If you had approached me there as you did here, straw manning my argument, appearing to quote me while using other peoples' words, in insulting tone and manner, and accusing me of dishonesty, then I would have reacted the same way.  It seems that you are determined not to take any responsibility for anything, and that's fine, if that's who you are.  I have nothing more to add on the subject.

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Yes, it was silly of me to think you were quoting me, when you said "You say" and then put what "I say" in quotes.

 

Can't we imagine a discussion going something like this:

 

Don Athos: "I am hungry, yet, I don't want to eat these round red-shaped fruit thingies on this tree."

Eiuol: "You mean those apples? But they're good for you!"

2046: "You say that you don't want to eat these 'apples,' however, since you are hungry, I don't understand why you wouldn't?"

 

Wouldn't it be perfectly obvious that I am quoting Eiuol and not you whilst simultaneously attempting to paraphrase your position? Seems perfectly obvious to me, if no other reason than Eiuol and not you said the words in the quote. I mean I suppose I can allow for reasonable degree of misinterpretation, after all maybe you meant strawberries or someting instead anyway, but in any event, if that's what you wanna flip out about, well then accept my deepest apologies.

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Imagine if Aristotle had invoked IP on the proper methods of using logic as he had discovered and developed it.   :twisted:

I can't imagine that, because IP doesn't refer to that. It's like saying "Imagine if Aristotle had invoked property rights on the Moon, and banned everyone from looking at it."

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Moving on... (He said she said doesn't help anything and I want to keep this on topic. Post in that other thread if you find it necessary.)

I'm using this thought experiment to ask specific questions I've been thinking about. As I suggested earlier, but this time directed at anyone reading: At which point do you agree or disagree? Do you disagree on how I described property? Do you disagree about the *reason* I said Theseus would still own the same ship? How does my thought experiment change when you take away the immediately concrete re-building and use a *duplication* instead? Answer any or all of these questions.

If I own m self, then I must own the particles of which my body is composed


First off, I don't think that self-ownership should be part of the story in explaining property (I also don't think one owns the information in their head). It's more sensible to talk about how property is a right to action of one's body in the first place. If you own your body, then what are you anyway? What would then own *that*? There is an infinite regression that can only be done with integration of mind and body where there is no outside agent that owns either. Homunculism is false, in other words. Since I reject self-ownership as a valid concept, the only story of property that I can tell is about the abstract nature of what I may use according to own will. My relationship to reality is only by means of abstraction as related to perception, lest we live like bears and own a cave by sitting inside. For *sustaining* flourishing, actual goods relating to abstractions are necessary, like a particular house. Whether I own myself does not enter into the equation, nor do the particles/tangibility of something become fundamental characteristics. But at the same time, all that can sustain my flourishing is action in the world. A problem comes in at this point, since I'm only implying that one needs to use the what they produce. But what, in fact, qualifies as being a produced? To stick to the dispute at hand, does a blueprint/patent for a piano qualify as produced in the same sense as you produce a house out of trees that you cut down? If a blueprint/patent is not produced in that same sense, then IP is invalid.

Again, the particles are not what fundamentally make anything unique and having identity. For the standard ship of Theseus question answered in an Aristotelian way, what counts even more are types of causation, or to use Objectivist terms, the measurements retained after abstraction (let's say at least the important features). Replacing each piece one by one won't result in not-Theseus' ship. But in my modified case, does Franz rebuilding his piano out  of the same pieces, does Franz end up with a new piano? Or is it the same piano?

Nicky, thanks for emphasizing that property rights are rights to actions. I didn't say that explicitly, but I should have. I don't know, though, who you meant by "you" when you said "you are  trying to deduce a more abstract question of property rights from a more concrete application of rights (the ownership of materials)." What I set out to do first was to talk about how sticking to concrete applications of rights only, like that invalid inference, is doomed to fail for justification of property in the first place. Franz rebuilding was intended to talk about property in general, then Wolfgang rebuilding intended to transition from the agreeable case to the core disagreements on IP. I might not have succeeded in conveying that.

Even the people who understand that when you say "I own that chair" you aren't suggesting that you have the right to climb the Empire State Building and drop it out the window, don't understand that when you say "I own that piano design" you aren't suggesting that you have the right to obtusely lock it away, and never ever allow anyone to build or use it in any way, under any conditions.


Good point, I overlooked this. Same deal about the next phrasing you disagreed with.

But this is a minor disagreement, and hardly the crux of the issue, which is in where we deduce the principle from: the more abstract principle of rights, or the more concrete application to objects, materials, designs, etc. I think it's the former, everyone in this thread is hard at work on deducing it from the latter.


I don't quite understand what you mean. How would you propose figuring out if IP really does follow from principles of property rights? My thought experiment is meant to be useful in the sense that if one has a strong case for IP, then figuring what Franz may or may not do about Franz should be easy. Since "it's just obvious" is not acceptable, the questions I started out with in this post are also important. The point isn't to deduce an answer from a single case, but to make it easier to think about philosophical questions.

Regarding "we need to have a reasonable constraint to its range of application. This way, claims to property can be objectively evaluated. A range of application isn’t as simple as saying a physical boundary. That may apply to a basketball, but not an open cattle range - there is no intrinsic boundary to land. Some degree of value is needed as well, otherwise there would be no need to recognize any existents in a special way with regard to individuals.":
I think I wasn't clear about what my standards were, since both of you didn't quite get what I intended to convey. I agree, there is constraint to what legal, rightful actions are. I'm basically saying that not only am I talking about legal constraints, but also what way is the (alleged) property in question privileged for your use? If you land on the moon, you don't have automatic privilege over the entire moon. So, instead of constraint, I should say "privileged use constraint". Property must at least be definable in terms of use. Land can be defined in terms of square acreage, or natural borders (rivers, mountains), etc. A basketball's privilege use is its distinctness as an entity. If IP is valid, how should one define its privileged use?

As for "some degree of value", I just wanted to convey that property is worth something to someone, in a realizable way. Look at Alpha Centauri as many times you want, but you can't claim it as yours for looking at it first. You can value Alpha Centauri as a nice star to look at, but nothing about the star itself can be traded, harvested, invested, built up, etc. There isn't even a way to get there, any more than there is a way to attain any value out of a time machine, or warp drives. After writing this, I see how "degree of value" isn't useful as a term here. I don't know a better term right now, but this explains what I'm referring to.

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I don't quite understand what you mean. How would you propose figuring out if IP really does follow from principles of property rights?

The same way we establish what rights ought to be in general. By looking at what kind of principles protect man's freedom to engage in self-sustaining action, on whatever scale his skill and intellect allow for.

I said this above too, but it was in a way too long post, so I'll just post it again here: The question is does IP serve that purpose, or stifle it? I think that's an easy question to answer, and Ayn Rand answered it by noting that the most fruitful, important kind of self sustaining actions are intellectual in nature. We must protect them before anything else, if we are to thrive.

My thought experiment is meant to be useful in the sense that if one has a strong case for IP, then figuring what Franz may or may not do about Franz should be easy. Since "it's just obvious" is not acceptable, the questions I started out with in this post are also important. The point isn't to deduce an answer from a single case, but to make it easier to think about philosophical questions.

Ok, I think I see what you mean. So, then, the thing to show in this case is that Franz, by designing a piano and sharing his design with others, for a price, is engaging in life sustaining action. But, if Wolfgang is just allowed to buy Franz's piano, copy it, and then build the same design without Franz's permission, then Franz's ability to design pianos for a living is stifled. Wolfgang is not engaging in life sustaining action, he is in fact a parasite, taking away from Franz's ability to create.

From this case, and cases like this, through induction (not deduction), one can then establish that such a state of affairs stifles innovation. One can also establish that a system of government which allows Franz to protect his design, and sell it exclusively, would allow creative people like Franz to live a fully creative, productive life.

That is the way in which the example is relevant. Obviously, that's not the end of the story. There's still a long way to go towards establishing that the right way to protect Franz and people like him is the kind of framework of laws we have in place today protecting copyright, patents, etc. But we did at least establish that the desired outcome is to allow Franz to reap the full benefits of his intellectual work, and that the only way that can happen is if he has the exclusive right to sell his pianos (but without abusing his ownership of the design to achieve some goal other than just this specific one - i.e. without gaining the ability to block innovation by buying up a million patents and sitting on them).

Then, we must design a system of laws protecting intellectual property that achieves this desired outcome, but does nothing else.

Edited by Nicky

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So, instead of constraint, I should say "privileged use constraint". Property must at least be definable in terms of use. Land can be defined in terms of square acreage, or natural borders (rivers, mountains), etc. A basketball's privilege use is its distinctness as an entity. If IP is valid, how should one define its privileged use?

As for "some degree of value", I just wanted to convey that property is worth something to someone, in a realizable way. Look at Alpha Centauri as many times you want, but you can't claim it as yours for looking at it first. You can value Alpha Centauri as a nice star to look at, but nothing about the star itself can be traded, harvested, invested, built up, etc. There isn't even a way to get there, any more than there is a way to attain any value out of a time machine, or warp drives. After writing this, I see how "degree of value" isn't useful as a term here. I don't know a better term right now, but this explains what I'm referring to.

I think it's OK to look at this issue (of privileged use, if that's what you want to call it, or of "does it generally achieve the desired outcome of rewarding the productive individual with the fruits of his labor", the way I put it - pretty sure we mean the same thing) when determining what kind of political principles are moral. Meaning, it's OK for philosophers to look at this issue this way. Principles aren't intrinsic, after all, they just serve the purpose of achieving some goal, in reality. The right goal is, of course, allowing individuals to fully engage in life sustaining action.

But the government can't look at it this way once the principles are established, to judge individual cases. We can't just have city councils or even Congress decide to introduce "eminent domain" (a totally un-principled method of the government simply circumventing private property and replacing it with central planning) or having the patent office decide which individual patents are awarded to whom based on their opinion of who's better suited to use it. We must have a government that follows principles, rather than pragmatically evaluate cases based on nothing but value judgments (evaluations).

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But specifically on these forums, the poster Harrison Danneskjold was making the claim in the “IP with feeling” thread, I think (I have trouble understanding him sometimes.)

 I was, and still do, maintain that IP is the ownership of ideas.  =]

 

But as has been accurately pointed out, property rights are the right to action- you do not have the right "to" any object which you own; you have the right to DO something with it.  And accordingly, intellectual property (in the form it's conceived of, here) isn't the right to someone else's thoughts or ideas, or any of their brain chemistry.

 

If you claim to own a piano, you claim the right to use that piano.

If you claim to own the IDEA of a piano, you are claiming the right to build such a piano.

 

Therefore, when we say that Franz owns his piano design, what we mean is that he owns the right to act on it.  This is the ownership of ideas- specifically the right to act on them.

 

 

Should Franz have the right to bring Wolfgang to court if he so chooses?

 One must ask why.  If Franz never discovered Wolfgang's illicit piano, would his rights still have been violated?  This relates to the other thread, but when we reached this point before I sort of mentally wandered off for a while.

But this is specifically how it relates to it: if person A drops a penny on the sidewalk and forgets about it, and then person B picks it up later, is that theft?

Bear in mind that the right to property is the right to action.

 

So how have Franz's rights been violated?  He still owns all of his material possessions.  He has not been harmed or interacted with in any way, shape or form.  If he hadn't heard the music, how could he have ever learned of this crime which has been committed against him?

So what would he sue Wolfgang FOR?  Theft- of what?  The right to create that type of piano?

 

If we accept this then Franz and Wolfgang are playing a zero-sum game; the success of one necessarily entails the loss of the other (as far as pianos go).

 

 

I'm using this thought experiment to ask specific questions I've been thinking about. As I suggested earlier, but this time directed at anyone reading: At which point do you agree or disagree? Do you disagree on how I described property? Do you disagree about the *reason* I said Theseus would still own the same ship? How does my thought experiment change when you take away the immediately concrete re-building and use a *duplication* instead? Answer any or all of these questions. 

 I disagree on your description of property.

Property rights are the right to create and use property; what you assert that Franz owns is not specifically the piano, but the very right to build it.

 

How can one translate the right to produce an object into the right to produce an entire type of objects, as such (a sort of metaphysical-essence ownership)?  That's what I don't get.

 

If you could clarify that for me then the rest would logically follow.

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Of course, if we clarify that then there's still the first-discoverer doctrine (which I disagree with) but I understand that and know where I stand on it.  At this point, I think we could figure all of that aspect out with minimal time and effort, if we so chose.

 

With respect to your scenario, I do not understand how Franz's right to build his piano translates into a right to prevent Wolfgang from such.  I disagree with other parts as well but they're secondary; if you could explain that then the rest would follow.

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So how have Franz's rights been violated?  He still owns all of his material possessions.  He has not been harmed or interacted with in any way, shape or form.  If he hadn't heard the music, how could he have ever learned of this crime which has been committed against him?

Maybe that day, nothing at all would happen. The next year even, perhaps nothing. But if there are piano making competitors, then realistically, there is possible economic loss, including the piano Wolfgang made. Indeed, if Franz didn't *know* anything, then it really doesn't matter. However, we're talking about when Franz does know. Realistically, any discussion on rights presumes someone finds out about a violation and can demonstrate a loss that hinders life sustaining action. All Franz did was show Wolfgang the blueprints, presumably in excitement, perhaps believing nothing would happen or that Wolfgang wouldn't build the piano. A contract isn't necessary, for example, to loan you a bike, although if you sold the bike or otherwise made a profit from my bike, I'd probably have the legal right to take you to court. In the same way, I'm saying that looking at a blueprint does not mean it is permissible to go make the piano and profit from it. At the very least, Franz should have a legal right to ask for compensation of some kind for the profit he would have asked for, at least through court proceedings. To add onto the story, or background for Franz, if he had just began selling pianos within a month for $500, do you think he has a legal right to be compensated for those $500 Franz would have asked for?

 

The question to ask is more about what defines a product of one's thinking and efforts. Is the idea behind the blueprint a product? Without a blueprint, I'd argue it wouldn't be a product, and only a product in the sense of figuring out a math problem. What Franz has is a creation, taken from research and being able to make a product, more than just figuring out an abstract solution.

 

(By the way, I say IP is ownership regarding *some* ideas, but IP is not ownership of *merely* ideas. It's not a major point, but it's there.)

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