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Objectivism And Tainted Holdings

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... the third party who has found property...
I want to return to the question: what is property? I think it is essential to chew on this concept: what it means (i.e. what are its referents), why we need such a concept, etc. first.

Suppose a discoverer happens upon a new continent. On exploring it, he has excellent reason to believe no humans live there and never have. Also, assume that he is right about that. In that context, is that un-owned land, the un-owned trees, etc. "property"?

Another example: I am driving down a road and someone has put a pile of firewood at the side of the street with a sign saying "Help yourself". Is that firewood "property" as it lies there, abandoned.

In other words, is property "that which is owned", "that which once was owned", "that which can be owned"... or something different.

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If the third party who has found property is obligated to return that property to the owner, assuming he can be found, then doesn't that contradict the second part of the paragraph? The third party certainly does have an obligation to return the property to the actual owner if he can be found.
No, it doesn't contradict my statement about privity of contract, since it's not an enduring and contractually malleable obligation. The only thing that the finder has to do is determine that the property is abandoned or hopelessly lost, because it is clear (when we are speaking of a created object) that it at least used to be someone else's property. The obligation doesn't extend beyond taking reasonable steps to return the goods to the owner, and such steps are what is required to assert ownership of the goods.
The third party likewise does have an obligation to respect the patent if he is aware of it.
That's true if patents are statutory, but not if they are contractual, simply because of privity of contract. It is in the nature of a contract that it is an agreement between two people, but if I find something, I do not inherit the contractual agreements between the original parties.
I still have some difficulty with the concept that knowledge can be property. It seems to me that there is a danger that we are engaging a legal fiction for the purpose of creating rights that appear just.
I understand your discomfort, but it's not a danger. Despite the phrasing you used there, I think it is what we want to do -- to create a legal category in order to recognise a right, the denial of which would be unjust. As SN points out, it's essential to get a firm foundation on what property is and what it entails. Property comes in multiple varieties: real, personal, intellectual and whatever you would call a "right to", such as a stock option. They have similarities, but also differences. Even simple ownership of objects is subject to statutory limitations (for example, what happens when the assumptions behind an exchange of ownership are invalidated -- like, your shipment to me of blackboard erasers turns up 1 carton short).
Is there a more detailed discussion of IP that can help me get my head around this issue better?
The obvious reading is Rand's "Patents and Copyrights" in CUI. I'm not sure about anything beyond that -- Adam Mosoff is an Objectivist who specializes in IP law. you can get references to some of his writings here.

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Because of its nature, I think that the only way to protect an individual's right to restrict the use of knowledge, is by way of statute. The other types of property that you mention, are different than IP because they are capable of exclusive possession and control. If I own a piece of land, or a car or the right to purchase shares, then it is possible to restrict actual possession and control over those things.

IP is unique. Unless knowledge is kept secret, there is no way to restrict possession of it. In fact, restriction of its use assumes that others will come into possession of it otherwise no protection would be necessary.

IP is also unique in that it deals with something that is not limited in terms of quantity. By this I mean that the fact that someone else may obtain the knowledge, does not diminish the knowledge that the creator has. It cannot be taken away from the creator even while it is given to any number of others.

In fact, other than the fact that knowledge is created by a man, there is little that compares it to other types of property that I am aware of. Given that I see the justice in protecting an individual's creation of knowledge, I am happy to proceed on the basis that knowledge is property of a sort.

This subthread began with a question as to the justification for time limiting the property protection when it comes to IP. It seems to me that, given its nature, and the apparent requirement of statutory restriction on its use, the more difficult task would be to justify extending the protection beyond the creator's death rather than to justify the termination of the right at that time.

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[...] I've been thinking more about [patents], I've yet to arrive at a conclusion, but I will.
...and now I have. I am posting this link for those (particularly David Odden) with whom I was discussing this issue many months ago: Intellectual Property

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...and now I have. I am posting this link for those (particularly David Odden) with whom I was discussing this issue many months ago: Intellectual Property
Uh, how come my scrolling mouse doesn't on your page? I'm so used to the lazy way of reading that I don't know how to do it the hard way. Well, a man's gotta do what a man's gotta do.

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There are certain points to be addressed. You say "There are other forms of intellectual property, such as trade secrets, business plans, and so forth. These are all protected through standard contractual agreements because their nature does not mean that they are open to widespread abuse". They might be so protected, but trade secrets can't be protected once the cat is out of the bag (for example if Dilbert's boss drops his copy of the secret formula in the street: the person who finds the secret has no contractual obligation). Another example is the Coca Cola formula, which is a (successful) secret but never patented. I don't see what that nature of the trade secret you are referring to.

(About trademarks) "This is all very well rooted in property rights, and is proper in its current form as far as I can see." The current "form" may be okay, if you distinguish it from current practice. A trademark is a broad license to kill. It should not be possible to make a generic trademark or any term "McX" or "Micro-X". The ordinary concept of "property" means that you own something specific; whereas, the ability of McDonald's to sue McSleep is a proof that actual trademark law goes well beyond the concept of property. Furthermore, since McSleep was a motel chain, there isn't even an argument based on fraud or potential consumer confusion.

(About copyright) "It permits certain type of quoting, where attribution is given and where the volume is less than a certain percentage, but beyond that all rights rest with the producer of the work." Do that at your peril.... First, attribution is not a legal requirement (it's a teacher's requirement, which holds of non-copyrighted materials as well). Second, the "percentage" is only a little bit relevant. You're speaking of the Fair Use exception, and there are other things going into a Fair Use analysis. The interesting question, from my POV, is whether Fair Use is proper law. It's surprising that you mention Fair Use exceptions, but don't harmonise this with the claim that patents are eternal, indestructable property. There is no such thing as a "fair use" exception for cars or fruit -- you can't take take "just one cherry" because it's a small portion of the fruit of the tree, you cannot borrow a person's car "just for a half an hour". Ownership is absolute, so by your analysis, you should never be able to quote someone else's words (as I am doing with your words), without their express permission. The only thing that would make any sense would be to denounce copyrights and trademarks, as well as patents. In fact, it is kind of hilarious that you put "Copyright © 2006 Jason King. All rights reserved" at the bottom. Is that serious? You don't actually think that the content of the web page is your property, do you?

"patents as they stand stem from a principle-less pragmatic line in Article I, Section 8 of the US Constitution". Well, in the US that is the root of the federal governments legal right to issue patents, but patent law goes back at least to The Venetian Patent Statute of 1474.

Anyhow, under the kind of analysis you're giving, the flaw in your argument is your concept of property. It looks to me as though you're thinking of "property" as a kind of primitive concept, not related to or derived from anything else.

"Property rights do not decay with time". Indirectly they do. Physical property decays with time, so to keep a physical object (including land) you have to act to keep it, and sometime you cannot keep it. With intellectual property, the idea cannot possibly decay, so it is guranteed to be effortlessly eternal. No further use of the mind is needed to hold IP after it is initially created.

It is not in the nature of property that it is eternal: rather it is in the nature of physical property, and only physical property, that you have the right to retain the object as long as you able to prevent it from decaying. What you're doing is playing a game with the term "property", not seeing that there are differentia that justify IP as a separate species of property, one where eternality is not applicable.

I understand the goal of having a principle to cover laws: my objection is that you've picked the wrong principle, which leads you to the wrong conclusion. But rather than go after your analysis of patents and property, I want to point out what looks to me like a significant error of fact. In "The Nature Of Patents", you say "In fact, like copyright, no one can copy any part of his design precisely without his permission". Copyright prohibits even the approxiate copying of protected material. Your claim could be expressed in many ways:

  1. "In fact, similar to copyright, no one can copy any part of his design precisely without his permission"
  2. "In fact, like copyright, no one may copy any part of his design precisely without his permission"
  3. "In fact, like copyright, no one can copy part of his design precisely without his permission"
  4. "In fact, like copyright, no one can copy any part of a design precisely without his permission"
  5. "In fact, like copyright, no one can precisely copy any part of his design without his permission"
  6. "Similar to copyright, no one may precisely copy a part of a design without the owners permission"
  7. "Kama mambo ya Copyright, huwezi kupiga mfanano wa kitu bila kupata ruhusa ya mwenyewe"

These are protected by copyright. Why should copyright be seen (by you) as legitimately "property" but invention isn't? If you rejected copyright and trademark as well, then we'd have an identifiable principle.

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[...] but trade secrets can't be protected once the cat is out of the bag (for example if Dilbert's boss drops his copy of the secret formula in the street: the person who finds the secret has no contractual obligation). Another example is the Coca Cola formula, which is a (successful) secret but never patented. I don't see what that nature of the trade secret you are referring to.
Most trade secrets are protected from associates, employees and ex-employees through NDAs and various other employee agreements. This is the nature of the trade secret that I am referring to. Btw, if Dilbert's boss drops his copy of the secret formula in the street then the person who finds it has the same obligations that they have if they find someone's wallet in the street. The ownership of the property is not lost simply because of an accidental loss of possession.

(About trademarks) "This is all very well rooted in property rights, and is proper in its current form as far as I can see." The current "form" may be okay, if you distinguish it from current practice.
I do. Obviously arbitrarily practised laws are incompatible with any proper capitalist society.

(About copyright) "It permits certain type of quoting, where attribution is given and where the volume is less than a certain percentage, but beyond that all rights rest with the producer of the work." Do that at your peril.... First, attribution is not a legal requirement (it's a teacher's requirement, which holds of non-copyrighted materials as well). Second, the "percentage" is only a little bit relevant. You're speaking of the Fair Use exception, and there are other things going into a Fair Use analysis.
With regards to attribution I was thinking of quoting in the media, not the classroom (which I haven't seen for over a decade :) But you are correct, I have made an error in my comments on copyrights, any use of any passage would need to be done with the permission of the copyright holder. I'm sure that things like the Creative Commons licenses will prevail for such situations where people wish to be quoted.

In fact, it is kind of hilarious that you put "Copyright © 2006 Jason King. All rights reserved" at the bottom. Is that serious? You don't actually think that the content of the web page is your property, do you?
Yes, it's serious, and yes, it is my property. Although I publish it knowing the fair use policy and am happy for people to quote me under that, as you've done.

"patents as they stand stem from a principle-less pragmatic line in Article I, Section 8 of the US Constitution". Well, in the US that is the root of the federal governments legal right to issue patents, but patent law goes back at least to The Venetian Patent Statute of 1474.
Perhaps I should elaborate on the phrase "as they stand" - patents prior to the US Constitution were quite dissimilar. One could argue that current patents actually stem from the British Statute of Monopolies of 1624 but because for the following reasons I pegged my introduction to the US Constitution: I'm not very familiar with the Statute of Monopolies, I know that there are some significant differences, and the essence of my argument is not affected because it too was based on pragmatism.

Anyhow, under the kind of analysis you're giving, the flaw in your argument is your concept of property. It looks to me as though you're thinking of "property" as a kind of primitive concept, not related to or derived from anything else.
There's no need to guess, I included my concept of property in the section entitled "The Nature of Property".

"Property rights do not decay with time". Indirectly they do. Physical property decays with time, so to keep a physical object (including land) you have to act to keep it, and sometime you cannot keep it. With intellectual property, the idea cannot possibly decay, so it is guranteed to be effortlessly eternal. No further use of the mind is needed to hold IP after it is initially created.
This is very important: the decay of physical objects is an attribute of their physicality - not of the fact that they're property. So important I'll repeat it, the decay of a physical object is an attribute of it's physicality, not of it being property. An object decays whether it is property or not, ergo the decay is an attribute of its physicality. Specially, decay is an attribute of non-living objects. Nothing to do with whether they're property or not.

Even for objects that do decay, one's rights to that object do not decay with the object. A rusted out shell of a car is still my rusted out shell. Ownership does not pass slowly away from me to someone else as the car rusts away. One does not need to do anything to maintain ownership of a physical object. The product of your efforts is yours, by right. That objects in the physical world decay with time does not affect one's ownership of that decaying object.

So it is an error to attempt to apply the attribute of decay to property and therefore to seek an analogy to it in intellectual property. The attribute does not belong to the class of entities abstracted as "property" it belongs to the class of entities abstracted as "physical object".

It is not in the nature of property that it is eternal
Yes it is eternal. Think about another common form of property which does not decay: money. Nothing is closer to the abstraction of "property" than money. It is eternal. You own it, or your heirs do, forever. Again, you're making an error in attempting to apply the attribute of decay to property, it doesn't belong here - it belongs to the concept of "physical object".

[...] it is in the nature of physical property, and only physical property, that you have the right to retain the object as long as you able to prevent it from decaying.
What principle is that based on? What in reality suggests that only when man's efforts result in physical property does he have a perpetual right to that property?

What you're doing is playing a game with the term "property", not seeing that there are differentia that justify IP as a separate species of property, one where eternality is not applicable.
By what principle? If I have an idea for an awesome energy conversion device, some new fusion device, and I work to produce a plan for such a device, by what principle does that plan, that intellectual property suddenly cease to be my property?

[...] rather than go after your analysis of patents and property, I want to point out what looks to me like a significant error of fact. In "The Nature Of Patents", you say "In fact, like copyright, no one can copy any part of his design precisely without his permission". Copyright prohibits even the approxiate copying of protected material.
I'm not sure from your choice of words whether you are referring to this, but you are correct in that I have made an error (although it's easily corrected). Item (2) of Section 106 of the Copyright Act which talks about derivative works has no basis in the principles of property rights. The act is not written well enough for me to understand precisely what they mean, but assuming that this paragraph forbids someone from reading a book, and producing a film based on the story in the book but without using any language or quotes from the book, then yes - that paragraph about derivative works is also incorrect in current Intellectual Property legislation. Thanks if that's what you were pointing out.

Why should copyright be seen (by you) as legitimately "property" but invention isn't? If you rejected copyright and trademark as well, then we'd have an identifiable principle.
I don't know how you drew the conclusion that I do not consider invention property. The following comments, amongst others, from my article all speak to my position that inventions are property:

Property is the product of man's effort. If I work very hard to think of some new gizmo, develop a design and so forth, then I have indeed produced something. And this thing is property, this design is property; intellectual property.

Prior to releasing the knowledge, while the designer has the designs all locked up in his office, if someone broke into his office, and copied the designs, and took the copies then they would have stolen from him - even though they did not steal any physical property.

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