93 replies to this topic

[Grames]

Objects "not a referent of the concept 'person'" and also material. "It is the right to gain, to keep, to use and to dispose of material values. [emphasis added]" Perhaps this is a redundant observation given "objects"? But due to the nature of the conversation, and the topics under discussion, I think it's important to emphasize. (And also to give you an opportunity to disagree on this point, if need be.)

I use the term objects for the reason that it generalizes to non-tangible primary referents such as the rights to copy one's own original texts and inventions. The rights themselves are economically valuable, and so 'objects' can also refer to the materials of cash or equivalent goods and services as a measure of the value of those rights.

I can make a stronger claim about material goods. For the example of land, no one ever actually owns land or possesses more than he stands on. Land ownership is the intangible right to use, and the corollary right to exclude others. The object (the target, the object of action) of the right of property is always material but the right itself is never material.

It was (and remains) important for me to try to determine "what is property" -- and how that pertains to reputation -- before assessing how to implement property rights of reputation. I think this is important. Before there is a "right to life," something must be living; before there is "liberty" there must be an entity capable of choice and action; before there are "property rights" there must be property. Or in other words, a corpse has no right to life or liberty. And if reputation is not property, as I am contending, then there is no property right of reputation, however we attempt to implement such a thing.

Besides this, I must quibble over the phrase "one's own history." I have a personal history in the sense of a history which pertains to me, or is about me, or recounts my life. But I do not own any history. History, as such, cannot be owned.

I will assume as a starting point that you grant a right to life: your own life, and me to my life, and others each their own lives. Life is time. Time is spent moment by moment and the consequences of that spending accumulate in wealth in the form of possessions, friendships and virtues. When a portion of your possessions are stolen from you then a portion of your life has been stolen from you. In a similar manner a lie about your present or past can rob you of friendships and productivity (productivity is a virtue), effectively wiping out a portion of your life. You don't merely own your history, you are your history.

If someone tells a lie about me, I have "control over 'my' history" to "negate" that falsehood in the sense that I may dispute it. Why do I need more than this, and by what right would I assert such control over the actions of other people?

The most clear example would be a person falsely accusing you of a crime. It is possible to be arrested, tried, convicted and imprisoned based of the testimony of others and the credulity of jurors. Those lying persons would definitely assert control over you in the crudest fashion possible. If you could defend yourself by proving the lie to be false then the tables wold be turned and the false accuser would be arrested and tried for the crime of perjury.

The criminal version is an extreme end of a spectrum of possible falsehoods anchored at the other end by the "white lie", and populated in the middle with the non-criminal civil disputes of libel and slander,

But okay. Let's suppose for the moment that there is a property right of reputation, or more generally of "one's own history." What principled reason would you propose to give me control to negate some of the falsehoods about that history... but "not all"?

Some lies are inconsequential, some lies are imputations cleverly expressed in the form of a weasel words, some lies are by means of omission and are not positive acts at all. In Shakepeare's play Othello very few (if any by my fuzzy memory of the play) of the actions perpetrated by Iago on Othello and Desdemona could be grounds of a suit or criminal case in the legal context of the present.

[DonAthos]

Objects "not a referent of the concept 'person'" and also material. "It is the right to gain, to keep, to use and to dispose of material values. [emphasis added]" Perhaps this is a redundant observation given "objects"? But due to the nature of the conversation, and the topics under discussion, I think it's important to emphasize. (And also to give you an opportunity to disagree on this point, if need be.)

I use the term objects for the reason that it generalizes to non-tangible primary referents such as the rights to copy one's own original texts and inventions. The rights themselves are economically valuable, and so 'objects' can also refer to the materials of cash or equivalent goods and services as a measure of the value of those rights.

I find it hard to receive this as other than "special" reasoning, allowed for the purpose of justifying IP and reputation, and whatever other delimited instances, but not for all of the other things which would logically follow. See, for example, my (and now also Nicky's) case of the love one person may engender in another; this love may well be "economically valuable" -- can it also therefore be property?

Also, I disagree with the reasoning as such.

In the first place, let me say that I think it's a mistake to try to transmogrify the idea of "material values" into "non-tangible primary referents." This just doesn't mean the same thing. When using the term "material values," and as the language itself makes clear, Rand was speaking of "things made of material." To provide some more context for this, consider this quote from Galt's speech, as reprinted in For the New Intellectual:

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

Finally, none of this is strictly to the point. If we want to have reputation as property, what we need to do is show that reputation is property. The (paraphrased) claim that "having a right to reputation is economically valuable, therefore we could theoretically measure such a right and treat it as though it were a physical good" doesn't do that. Any kind of coercive monopoly would theoretically be "economically valuable," and measurably so, but that does not mean that it is a right.

I can make a stronger claim about material goods. For the example of land, no one ever actually owns land or possesses more than he stands on. Land ownership is the intangible right to use, and the corollary right to exclude others. The object (the target, the object of action) of the right of property is always material but the right itself is never material.

I'm no expert in law of land ownership, though I'm aware that it's a complex area. So maybe you believe that makes for a stronger claim -- and maybe that's even true -- but I'm afraid it will not assist us in this discussion.

Besides this, I must quibble over the phrase "one's own history." I have a personal history in the sense of a history which pertains to me, or is about me, or recounts my life. But I do not own any history. History, as such, cannot be owned.

I will assume as a starting point that you grant a right to life: your own life, and me to my life, and others each their own lives. Life is time. Time is spent moment by moment and the consequences of that spending accumulate in wealth in the form of possessions, friendships and virtues. When a portion of your possessions are stolen from you then a portion of your life has been stolen from you. In a similar manner a lie about your present or past can rob you of friendships and productivity (productivity is a virtue), effectively wiping out a portion of your life. You don't merely own your history, you are your history.

When you say "a lie about your present or past can rob you of friendships and productivity," we're running into the same central issue that permeates this entire discussion, and we must be very careful.

What does it mean to "rob" a person of "friendships"? In one sense, that's true. A lie can result in the ending of friendships that you've acquired -- ones you've spent time to develop and etc., and invested yourself in (and by that I mean, your time, your life, precisely as you've said). But in the context of a discussion as to the nature of property? Can you really "rob" a person of friendship? Is friendship property?

By the reasoning I've seen throughout this thread -- and I'd contend clearly identified here -- it seems that the answer is "yes." At least implicitly so. You'd never explicitly agree that friendship was property (I don't think). And yet, to "rob" someone of his hard-won friendships is to "effectively wipe out a portion of his life," which seems to be the rationale you're providing here as to why reputation, "history," et al., are legitimately considered property. It's all reduced to "a portion of your possessions," "wealth in the form of possessions, friendships and virtues."

Well, I'd maintain that one of those three things are property, and the other two are not. We need to have a clear statement as to why some things count and not others, and so far I believe that when we've arrived at that clear statement, we will find that items such as "friendship" and "reputation" do not qualify as property.

If someone tells a lie about me, I have "control over 'my' history" to "negate" that falsehood in the sense that I may dispute it. Why do I need more than this, and by what right would I assert such control over the actions of other people?

The most clear example would be a person falsely accusing you of a crime. It is possible to be arrested, tried, convicted and imprisoned based of the testimony of others and the credulity of jurors. Those lying persons would definitely assert control over you in the crudest fashion possible. If you could defend yourself by proving the lie to be false then the tables wold be turned and the false accuser would be arrested and tried for the crime of perjury.

I agree that a false accusation of a crime is itself a crime. I believe that, accounting to the nature of governmental action (which is what such a false accusation is an appeal to), this is an initiation of the use of force.

But this does not mean that all lies are an initiation of the use of force, nor that I may use force ("control") in response to all such lies for the purpose of "negating" falsehoods about "my history."

The criminal version is an extreme end of a spectrum of possible falsehoods anchored at the other end by the "white lie", and populated in the middle with the non-criminal civil disputes of libel and slander,

I disagree with this characterization. I think it's bifurcated into instances of the use of force and not. When you speak of this "spectrum" and the "middle cases," really we're talking about instances where force has not yet been initiated.

To insert the courts -- even civil courts -- at that level is to initiate the use of force.

And if you'd contend that force has been initiated in these "middle cases," then why aren't you in favor of criminal penalties? When you talk about peoples' lives being effectively wiped out by these sorts of lies, don't you mean it? Why is stealing a person's car worth jail time, but "stealing his friendships," which may represent a far greater investment of time (and even capital) not? What are your objective criteria? I'm at the point where I really want this clearly spelled out.

Some lies are inconsequential, some lies are imputations cleverly expressed in the form of a weasel words, some lies are by means of omission and are not positive acts at all. In Shakepeare's play Othello very few (if any by my fuzzy memory of the play) of the actions perpetrated by Iago on Othello and Desdemona could be grounds of a suit or criminal case in the legal context of the present.

Please do not mistake or misconstrue my arguments here as being in favor of lying, generally, or as being insensitive as to how malicious and subtle lies can be. I had an ingrained hatred of lying (or rather a love of truth) far before I ever read Rand.

But in considering questions of "what is property," I'm afraid that I cannot simply allow that every form of "damage" that one person takes from another indicates that there has been use of force, or loss of "property," or something actionable whether in criminal or civil court.

I may work for a long time at controlling my temper. Learning to meditate. Taking classes and etc., representing a huge investment on my part. And perhaps some comedian makes a joke to which I take offense, and erupt... and who knows how much "damage" this might result in for me? I may lose relationships or my job, above and beyond the loss of my investment in my attempts to control my own temperament. Well, what of it? The comedian in this case may even well be an "Iago," whose understanding of my psychology enabled him to subtly manipulate me. But if he did not initiate the use of force against me, not only would I not find grounds for a criminal case "in the legal context of the present," but I would argue that there ought not be any such grounds in any objective legal code.

After all, we're not merely concerned with "what does the law say?" But "what ought the law be?"



***


It's occurred to me that perhaps I've spent too much time cursing at the darkness in this thread, and not taken the time to light many candles. Let me briefly talk about property, and why I think that it's a right in the first place. Perhaps that will... shed some light on the ongoing discussion. (Ha... what a wit I am... <sigh>)


Man lives in a natural world filled with potential resources. Not "wealth." Not really. Not yet. But the potential for wealth. Even bananas in the tree are not yet wealth for the man who lives nearby.

Man of his nature has requirements to survive, to live. He needs food, shelter, (and eventually medicine, computers, and etc.), which is to say that he needs the bananas in those trees. If he does not acquire them or their equivalent, he will die.

But the conversion of "potential resources" to "wealth" -- bananas in the tree to bananas in the hand -- is not automatic. It first requires an expenditure, of time, energy, life. This expenditure proceeds in the following manner: a man first performs a mental labor -- he recognizes the fruit in the trees and that it would be good to have some and that there is some means by which he may acquire it; then he performs a physical labor -- he climbs into the tree and procures the fruit.

Thus he has his banana. Both aspects of labor -- the mental and physical -- are required to perform the task. The first without the second is useless and the second without the first is impossible. Mind and body must work in concert. And the result is? Wealth. And simultaneously property.

The banana, in its conversion from potential resource to actual wealth, simultaneously becomes property. It is right that the man who performed the labor be the benefactor of his labor. It exists as wealth through an expenditure of his life, and it is his by right. The man who thought to acquire the banana, and carried out this plan in reality, is the rightful owner of the banana. And should someone else try to take this banana from him -- an initiation of the use of force -- he would be justified in defending himself.


The above is my vision of what property means, and how it comes to be, and why it is a right. I should like such a clear picture for things like IP or reputation or "history" if I am to agree that they are also property.

[Greebo]

I find it hard to receive this as other than "special" reasoning, allowed for the purpose of justifying IP and reputation, and whatever other delimited instances, but not for all of the other things which would logically follow. See, for example, my (and now also Nicky's) case of the love one person may engender in another; this love may well be "economically valuable" -- can it also therefore be property?

On the IP point...

If Rand did not intend for intellectual property to be property in her use of the language, then please explain why Hank Reardon so vehemently held onto his sole right to produce Reardon metal (until it was extorted) and refused to share the formula? The formula to his metal is just as much IP as software or music is - it's a combination of ideas that creates something new.

[DonAthos]

On the IP point...

If Rand did not intend for intellectual property to be property in her use of the language, then please explain why Hank Reardon so vehemently held onto his sole right to produce Reardon metal (until it was extorted) and refused to share the formula? The formula to his metal is just as much IP as software or music is - it's a combination of ideas that creates something new.

Well, let me be clear. If a man has a formula, I don't think he should ever be compelled to "share" that formula. Newton never owned calculus, and couldn't prevent others from learning it/using it/whatever, but neither did he have any obligation to share his discoveries (let alone would I advocate somehow learning those ideas from him by force). I don't know whether that answers your question or not, but that's the first response to come to me.

As for Rand's "intentions," I do not contend that she didn't believe in intellectual property. Clearly she did, as evidenced by her essay on Patents and Copyrights. But no, I don't think that her explanations of property rights, as such, (or rights generally) provide any justification for intellectual property. Rather, I believe that they are ultimately in conflict; I think we're dealing with an inconsistency. Whether that manifests itself in episodes in Atlas Shrugged, I can't rightly say -- too long since I've read it.

As for the phrase "a combination of ideas that creates something new," here's what I'm saying: when we're dealing with wealth, it's not enough to have a "combination of ideas." In order for wealth to be produced, there must be idea and action together. It is this even-greater "combination" which is responsible for wealth, and it is by right of this combination of effort that there is property.

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

It is true that for there to be something new, an "innovation," there must be an innovator. But the innovator is not, himself, the creator of every subsequent iteration which proceeds from his example. He does not create all of that wealth. It is not all private property "by his right," but "by the right of those who apply the knowledge and effort."

The man who, through his innovative example, demonstrates to the rest of the village how one properly picks bananas from the trees does not therefore own every banana that everyone else picks from then on. IP, in principle and in practice, argues the contrary.

[DonAthos]

Having shown what I believe to be a demonstration as to the nature of property -- what it is, and why we have it -- allow me to now refocus my critique of "intellectual property." First a recapitulation of what has become my central thesis.

In order to live, men need to make use of material wealth. Before material wealth can be used, it must be created. The creation of this wealth proceeds in a two-step process of labor: step one is mental labor -- one must recognize how raw materials may be fashioned to serve man's ends; step two is physical labor -- one must actually put this into practice.

These two steps, in reality, are indivisible. "Step one without step two" is useless and will not create any material wealth. "Step two without step one" is impossible, and if one acts as a zombie would, he will not create any material wealth. Mental and physical labor both being necessary for the creation of wealth, and thereby the sustenance of man's life, makes sense in that man is mind and body both, integrated.

"Intellectual property" seeks to reintroduce a division between mind and body, and treats the "fruits of their labor" separately. It insists that the true source of material wealth is mental labor alone, and further that it is only the first instance of a man innovating a new idea who has somehow "truly" performed this task. But both of these premises are factually incorrect, and they set "intellectual property" firmly against actual property. The man who innovates the car, and builds one car, has created the following amount of material wealth: one car. The man who innovates the car and builds nothing has created no material wealth.

Does he have "mental wealth"? Perhaps he does. Typically when we speak of a man being "wealthy," we know that we mean material wealth -- i.e. those material values which man must make of nature's resources in order to live and flourish. But metaphorically we can speak of a man being "wealthy" in other ways. We can say that a man has a "wealth of knowledge" or "of friendships." We may talk about a man being "wealthy in spirit," if not materially. And these are fine metaphorical understandings, but absent the physical labor involved in reshaping nature to our ends, this kind of wealth will neither feed a man, nor clothe him, nor give any rise to "property" or "property rights." A reliance upon mental labor without corresponding physical labor is death.

If the innovator of the car watches his neighbor build a car for himself, the innovator loses nothing. The creation of wealth is not zero-sum. In fact, every creation of wealth adds to "the total," if we care to look at it as such. If I build a car for myself, I have a car. If you build a car for yourself, my car is no less than what it was. This is one of the joys of a proper understanding of property, and rights more generally; we have nothing to fear or resent of each others' successes, or accumulation of wealth. Your prosperity does not make me poorer.

So if the innovator's neighbor has built a car for himself, more wealth in total has been created. The innovator has lost nothing of his "mental wealth"; surely he knows all that he did. Certainly his material wealth has not diminished -- he still possesses the car that he has built, as before. Nor has his capacity for material wealth changed; he is welcome to build as many more cars as he chooses. However, if the innovator feels "lessened" in that he claims that his mental labor has "created" the car that now sits in his neighbor's garage? The car that his neighbor has, in fact, built? He is wrong. It is almost a mystical notion to assert that one man's mental labor can be the cause of another man's actions, and actual creation of wealth. In reality, this is what has occurred: the neighbor, having seen the value of creating a car, has set himself the task of understanding how one achieves this, and then endeavored to do it for himself. In short, he has performed the very mental and physical labor which is the foundation for all wealth creation. And that wealth which he has created is by right his, which is to say, it is his property. Should the innovator decide to take it for himself, laying claim to wealth he did not create, he is a thief.

The assertion that a mental labor, once performed, entitles the laborer to the wealth of every subsequent act of physical creation, no matter by whom, of the supposed "fruits of that mental labor," is no longer a tenable notion. It relies upon an implicit mind/body dichotomy, it proceeds upon a mystical understanding of how men actually create wealth (i.e. not unthinking, like zombies), it wrongly treats wealth creation as a zero-sum game setting reasonable men against one another, and it paradoxically and sadly drives innovators to act as parasites do, in laying claim to the wealth justly created by other men.

All of the myriad, never-to-be-solved problems of "implementing intellectual property fairly" -- a mass of ad hoc justifications and non-objective, Utilitarian-tinged problem solving -- can ultimately be accounted to these fundamental inconsistencies. "Intellectual property" is not a recognition of man's rights, but an abrogation of them.

[Grames]

The man who, through his innovative example, demonstrates to the rest of the village how one properly picks bananas from the trees does not therefore own every banana that everyone else picks from then on. IP, in principle and in practice, argues the contrary.

The "from then on" phrase is a real strawman. I for one never advocate that, neither did Rand. Has any actual intellectual property system ever been granted in perpetuity, anywhere or at anytime in history?

[DonAthos]

The man who, through his innovative example, demonstrates to the rest of the village how one properly picks bananas from the trees does not therefore own every banana that everyone else picks from then on. IP, in principle and in practice, argues the contrary.

The "from then on" phrase is a real strawman. I for one never advocate that, neither did Rand. Has any actual intellectual property system ever been granted in perpetuity, anywhere or at anytime in history?

Well that's how "intellectual property" works for as long as it's enforced. I guess the principled argument for "intellectual property" (just as for actual property) makes no claim as to whether it will be guaranteed by law for a day, or a million years. But so long as it is enforced -- "from then on" -- that's how it is.

"Intellectual property" is bad law, contradictory to human rights as I believe I've now shown (and frankly, I feel a little staggered by it; I'd been holding out for an explanation that would sit IP comfortably with other rights, but I'm increasingly becoming convinced that it's not coming... that it's not available). If the defense is, "well, we'll put a time limit on it," that does limit the damage done. Still not ideal.

In practice, of course you're right. No one would ever advocate (let alone grant) intellectual property "in perpetuity." Rather, that's how we treat actual property -- the wealth people actually create. But you would never treat "intellectual property" the way you treat actual property -- the stuff of human rights -- because to embrace the inherent contradiction that intellectual property represents so fully as that would be a disaster. Treating "intellectual property" as actual property would be so detrimental to human life that it would lay immediately clear the fundamental nature of "intellectual property" -- a recipe for death.

Even so, my phrasing isn't a straw man, as I've explained elsewhere -- it is part of the critique/part of how I am demonstrating that "intellectual property" has nothing to do with property at all, but is a "special case"; a collection of unprincipled, Utilitarian approximations; a legal homunculus.

But all right. Let's treat my phrasing as a straw man. Let's eliminate the straw man so we can examine the real deal, by putting to bed the idea that intellectual property should exist "in perpetuity" -- fair? A man builds a chair, and that is his chair. We're agreed? He's created value, wealth, property, and he owns it -- he owns that chair. When the man dies, the chair remains "his" in the sense that he is able to will it on to his descendants, or however he chooses. We never feel called to take the chair from him or his family, and "redistribute" it to those who didn't create it, and have no claim to it. It's never "the public's chair." It's always the man's, or his descendants (or whomever he chooses to give/trade it to), and so on down the line, forever. Yes?

A man invents "chairs," which for our purposes we'll deem patentable. We're ignoring the mind/body split here, and pretending that this innovation is the creation of a vast treasure of wealth. After all, as Rand says in her essay on Patents and Copyrights, "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." Well, okay. That means that the innovator of "chairs," in originating the idea, has created the value of every subsequent chair "copied" through "physical labor." (And we can note that there's no time frame on this idea: he hasn't just created the value of the next ten years' worth of chairs, or whatever, but the value of all chairs, forever.) Well... if he has created this value -- which is, let us note, the source of our claim for his property rights, as such -- then why oughtn't he be able to will this same value to his descendents, just as he is able to with the actual physical chairs he creates?

If you're suggesting that we take this man's "intellectual property" from him, and from his descendants -- the value that he has created of his own labor -- to apparently redistribute that value onto people who do not deserve it/did not create it or trade for it, I must ask: upon what grounds?

[Grames]

If you're suggesting that we take this man's "intellectual property" from him, and from his descendants -- the value that he has created of his own labor -- to apparently redistribute that value onto people who do not deserve it/did not create it or trade for it, I must ask: upon what grounds?

Upon the grounds that he no longer possesses that value.

Lets start with the legal precedent of how claims of land ownership are demonstrated and adjudicated, and specifically the doctrine of adverse possession. Every user of a patented invention or owner of a book is as a squatter on a piece of real estate. After enough time has passed, those who utilize the invention have their own claim to the value of that property by the fact of their own possession and labor. The time limits on patents and copyrights are a way to make uniform and predictable when the original inventor's or author's rights must give way to recognizing the reality of the value created by others (the same values you have been pointing out in this thread) utilizing those formerly protected properties.

Although it might seem paradoxical that property law requires a standardized means of terminating property rights it is in fact necessary to have property rights at all. Especially with land which exists perpetually (a practical perpetuity, in comparison with the lifespan of a person) it is necessary to have statute of limitations to prevent remote descendants of previous owners from litigating the ownership of current property titles.

Don Athos, in this reply I am essentially agreeing with you on the importance of actually possessing the value of a property but reaching the opposite conclusion.

[DonAthos]

Upon the grounds that he no longer possesses that value.

Lets start with the legal precedent of how claims of land ownership are demonstrated and adjudicated, and specifically the doctrine of adverse possession. Every user of a patented invention or owner of a book is as a squatter on a piece of real estate. After enough time has passed, those who utilize the invention have their own claim to the value of that property by the fact of their own possession and labor. The time limits on patents and copyrights are a way to make uniform and predictable when the original inventor's or author's rights must give way to recognizing the reality of the value created by others (the same values you have been pointing out in this thread) utilizing those formerly protected properties.

Although it might seem paradoxical that property law requires a standardized means of terminating property rights it is in fact necessary to have property rights at all. Especially with land which exists perpetually (a practical perpetuity, in comparison with the lifespan of a person) it is necessary to have statute of limitations to prevent remote descendants of previous owners from litigating the ownership of current property titles.

Don Athos, in this reply I am essentially agreeing with you on the importance of actually possessing the value of a property but reaching the opposite conclusion.

Wow wow wow, what a clever response!

Okay, it's going to take me a little while to properly digest and respond to this, but before I do so, can I try to clarify with you the meaning I'm taking from this?

I take it that you're saying that people will flout a man's legitimate intellectual property rights, which is theft. But since this theft will occur (de facto), at some point there is a rightful recognition that those who've stolen the value thereof are now its legitimate possessors (de jure)?

Thus temporal limits to intellectual property rights reflect a sort of median on the time we judge it takes for this "transfer of ownership" -- for the illegitimate squatter to become the rightful landlord -- and as you say, to standardize it?

[Grames]

I take it that you're saying that people will flout a man's legitimate intellectual property rights, which is theft. But since this theft will occur (de facto), at some point there is a rightful recognition that those who've stolen the value thereof are now its legitimate possessors (de jure)?

I would not use the word 'theft' here which presumes much and has a built-in moral evaluation which begs the question of what establishes property claims in the first place. After all, the transfer of land title in an adverse possession case is lawful, not a theft. What is important is the fact of simple possession. First the inventor or author has possession but to maximize its value (use it, and get others to use it) he has to publicize the property and sell it, and effectively transfer possession, rather than keep it a secret that he takes to his grave. A definite term for IP rights makes clear when that transfer (transfer-in-full with rights to reproduce, vesting) takes place, rather than letting the matter be up to the terms of sale of each item and the terms of each contract of sale.

(Think about the case of a free, rational society which had no IP law. The whole area would be in contract law and judges would have to create the theory of what can be subject to restrictions and what cannnot, i.e. reinvent an equivalent definition to what is "patentable subject matter", and apply the common law rule against perpetuities to restrict authors' ability to limit copying as a condition of sale. If we had no legislated IP law, we would have a judicial case law for IP anyway).

Edited by Grames, 15 April 2012 - 05:25 PM.

[DonAthos]

I would not use the word 'theft' here which presumes much and has a built-in moral evaluation which begs the question of what establishes property claims in the first place. After all, the transfer of land title in an adverse possession case is lawful, not a theft.

I understand your reaction to my use of "theft," but I think the choice appropriate. Consider that the word "adverse" also has a built-in moral evaluation. While the transfer of land title in an adverse possession case is lawful -- by definition -- prior to that transfer, the use of said land is not. And the link you've provided to Wikipedia on "adverse possession" begins:

Adverse possession is a process by which premises can change ownership. It is a common law concept concerning the title to real property (land and the fixed structures built upon it). By adverse possession, title to another's real property can be acquired without compensation, by holding the property in a manner that conflicts with the true owner's rights for a specified period. For example, squatter's rights are a specific form of adverse possession.

Note the phrase (emphasis added) "holding the property in a manner that conflicts with the true owner's rights." You yourself compared this process to squatting (which is also referenced above).

So if we view this process as being a kind of legal kludge to address the problems that arise when peoples' de facto treatments of others' property conflict with the rights of the true owner(s), then I think that "theft" is really very close to what we're talking about. In fact, we could be speaking about theft outright, couldn't we? If I steal something from you, and manage to hold onto it long enough, and "will" it to my children, and so forth, wouldn't we ultimately come to regard this as a form of "adverse possession"?

In the end, this doesn't help me to reconcile intellectual property as a right; it does not address the arguments I've made as to the nature of property rights, nor my claim that property rights and intellectual property are fundamentally at odds with one another. It does not provide any justification for intellectual property, nor address what I've claimed (and continue to hold) with regards to intellectual property's reliance on a mind/body split and mysticism.

But given intellectual property, I find it a very interesting idea in its application to the temporal limits of intellectual property, as administered. I should also report that it's very unsatisfying emotionally (not that this constitutes an argument, per se, naturally ). But this theory disposes me to regard the general progress of the welfare of humanity as a great chain of theft; that we only prosper by "squatting," taking one anothers' justly earned wealth without permission, without compensation, and in blatant conflict with others' rights. (Though I should not be surprised at this outcome; if I'm right about intellectual property, as such, it would only make sense that it would eventually recast the world into something of an abattoir. Though an abattoir by mutual consent and enshrined in law, so I guess that's something...?)

Were I to pursue this line of "adverse possession" further, I would wonder why it's necessary in cases of modern intellectual property. We do maintain strict records re: patents, and such. The law seems competent and capable of maintaining "true owner's rights" for an indefinite period into the future. So why should we ever recognize the so-called rights of these intellectual squatters at the expense of the creators and true owners of this wealth? It's not as though the Disney legal team is going to tire of suing over likenesses to Mickey Mouse anytime soon; why should we force them to stop seeking preservation for their rights? Isn't that unjust?

And further, I note that some of the requirements listed for "adverse possession" may be inapplicable to intellectual property as you've described it. Most compellingly is the requirement of "hostile or adverse use," which is described by the Wikipedia article thus: "The disseisor entered or used the land without permission. Renters, hunters or others who enter the land with permission are not hostile."

Well, if we construe your example -- "the inventor or author has possession but to maximize its value (use it, and get others to use it) he has to publicize the property and sell it" -- as a type of "permission" for use of his idea-made-manifest, and I think this a fair (and even necessary) construction, then that use in itself is not adverse such that there can be a claim of "adverse possession" (that is to say, the normal marketplace dealings and subsequent uses of "an idea" would not be sufficient for any "adverse possession" claim to that idea, as those dealings and uses would not, themselves, be "adverse").

It would only be "adverse" if someone knowingly flouted the innovator's intellectual property rights while they are recognized and generally being enforced (i.e. theft); at that point, should the flouting/thieving/squatting persist for a long enough period of time, we could make a claim for "adverse possession," and transfer title accordingly.

Edited by DonAthos, 16 April 2012 - 02:02 PM.

[DonAthos]

Some More Thoughts...


Yeah, intellectual property has been much on my mind as of late. Here are two of the scenarios I've been going over.

1) (I believe I've relayed this anecdote elsewhere, but here it is again... in Technicolor!) In Junior High, I knew a kid named John -- we had English together. One day, I saw him reading Jurassic Park... (hipsters take note! This was before the movie -- before it was cool!) It looked intriguing to me, so I decided to get a copy and read it as well.

Well! Others noted, and derided, the fact that I had gotten the idea to read this novel from observing John. They called me a "copycat."

I've remembered this incident ever since, and it helped me to realize something about myself (something which I consider valuable): I am an unapologetic copycat. If I see someone else doing something smarter or just generally better than I do it, I try my best to emulate them. If someone is listening to music that sounds good to me, I begin to listen to that music. If I see someone reading an intriguing book, I read that book. Someone's devised a better process for test preparation? I use that method to prepare for my next test.

What was the source of my being scorned as a copycat for reading what John was reading? Clearly they had some notion that there was something proprietary in John's decision to read this book, and something lacking in my "mindless" decision to do the same (though in reality, I'd contend that I acted very mindfully). These attitudes strike me as having much in common with the attitudes I find standing in defense of intellectual property. I consider myself in opposition to the whole lot.

2) I think we all* (*not necessarily "all") have an ingrained reaction against the scenario where a man who comes up with an idea has that idea "stolen" by some "Big Evil Company" (BEC) which proceeds to make a bazillion dollars, while the poor innovator remains penniless. This certainly doesn't seem just.

Yet, I wonder. Given that our understanding of intellectual property holds that the innovator has created all of the wealth which that bazillion dollars represents in his innovation -- that the value does not come from the BEC's "mindless copying" -- then why isn't it the innovator who has the bazillion dollars before we ever think to intervene with our IP laws?

I mean, if it's actually true that it is the innovation itself which creates the wealth... then why doesn't the wealth-as-money also somehow exist prior to the BEC's "theft"? Why doesn't the innovator simply realize the immense riches that he's responsible for, given that the act of creation is for all intents-and-purposes done? How does the opportunity exist for the BEC to "steal" anything at all?

If the answer is because the innovator in this example is unable to manifest his supposed riches, whereas the BEC possesses the true capacity to do so, as evidenced by the fact of having done it... and if it is this capacity which enables these riches to ultimately exist at all, then doesn't that say something important with respect to our initial stance, which was that it was the "mental labor" which was the true source of this wealth, as opposed to the devalued "physical labor"? Doesn't it put the lie to the idea that the "copying" of the BEC doesn't add true value?

Without the innovator, it is true that the BEC would have nothing to "copy." The creation of wealth requires both mental and physical labor. The BEC, in recognizing the potential value of the innovator's innovation, and recognizing the steps that they will have to take to bring that idea to fruit in reality, and then in actually taking those steps, have performed both the mental and physical labor required to create that wealth, the terms of which requirements neither being decreed by God's fiat nor by man's laws, but by the nature of the wealth itself. Since it is the BEC which has performed the labor necessary to create the wealth, that wealth is their property by right.

Edited by DonAthos, 16 April 2012 - 04:10 PM.

[Grames]

The lesson I wished to draw from the example of adverse possession is the importance of possession and use to establish claims to property rights. I did not intend to make the stronger claim that there is an analogy between adverse possession and the eventual ceding of intellectual property rights, and in fact there is not an analogy to be made. So please, lets back up a bit.

There is some ambiguity in the use of the word 'rights'. It is a bridging concept between the field of ethics and the field of politics, and it is also used to refer to privileges constructed by contractual agreement (i.e. 'a right to exercise an option'). It can sometimes be necessary to clarify which context applies. In the case of adverse possession, there was a mismatch between what the legal formalities of title to a land specified and the facts on the ground. Ethically, the formal owner had no rightful claim on the land due to abandonment and so then politically (judicially) the legal title is amended to be correct.

Theft is the change of possession without consent of the original possessor. Abandonment is by default a consent to a change of possession (abandonment is a consent to anything that may happen). There are objective requirements that demonstrate abandonment quite apart from any belated claims to the contrary by the original owner, and if abandonment is demonstrated then the original owner in truth had no right to the land he claimed because he was not using it. Rights are rights to take actions not rights to objects. Where there is no action for a long duration there can be no basis for rights or property rights.

What matters in settling property claims is possession and consent. Possession and consent are the two criteria that will sort out every possible property dispute from adverse possession in real estate to criminal theft to water rights to breach of contract.

Inventors and authors voluntarily transfer the possession of their property into the custody of others, which is a positive action done with intent as well as consent. This is not abandonment, so an analogy between time limits on IP and adverse possession fails at this point.

In the absence of any legislated IP law inventors and authors would attempt to protect their interests via uses and misuses of contract law, the contracts being conditions imposed upon the sales of the inventions and texts and artwork. The current proliferation of end user license agreements (EULAs) for software is an example of an attempt to defend IP with contract law. To repeat myself, in the absence of legislated IP law we would instead have a judicial case law for IP entirely within the specialty of contract law, judging the validity and permissible scope of the clauses restricting reproduction and resale. What would you have to say about that, would you want to ban those contracts?

Simply as a matter of logic and non-contradiction, certain kinds of contracts are impermissible. Contracts dealing in slaves are grotesque self-contradictions, and the right to vote is not transferable (a vote buying agreement can be made but no court would recognize it or enforce it in case of a breach). The common law Rule Against Perpetuities prevents restrictions on the control of real property from extending beyond 21 years. (This mainly prevents dead people from controlling the living beyond that time. Life is for the living.). The common law Rule Against Restraints on Alienation prevents a seller from infringing (or unreasonably infringe) on a buyer's right to alienate (resell, donate, transfer) his own property. One does not actually have a full property right without the right to dispose of that property, and it is in everyone's interest that rights should be defended in full.

The current IP law restrains what merchants and authors would attempt to get away with in the absence of that law. As the source of and first possessor of a new article of intellectual property it is only just that the artist or inventor be permitted to commercialize his property and sell it on any terms he pleases including restricting resales or reproductions, i.e. exercise his right of property. But he cannot exercise those terms without limit because his customers have property rights as well, right founded on actual use and possession in the present rather than the remote past, up to twenty years in the past for inventions (and much longer for copyrights as they are not utilitarian and therefore less likely to be some second person's means of livelihood). The boundary between the rights of the sellers and the rights of the buyers could be left to each product's contract of sale and each court case in each separate jurisdiction or we could have a uniform code of law for all IP products in all jurisdictions.

I prefer the uniformity and believe that best defends everyone's rights and enhances the trade value for everyone concerned. You may be unconvinced of the advantages of uniformity, but don't believe for a second that repealing IP laws would prevent attempts to control IP by other non-uniform means. You would be cutting the head off of a hydra, which would grow ten-thousand heads and more to replace the one lopped off. If your ambition is to kill the IP hydra, you could not do it except by assaulting the freedom of contract in general.

[Grames]

Addendum to my last post: The Doctrine of Right of First Sale has its basis in copyright law. Without copyright law, there would be no Doctrine of Right of First Sale and you might today be not able to sell your used DVDs, games and other stuff.

Edited by Grames, 16 April 2012 - 07:36 PM.

[Grames]

1) (I believe I've relayed this anecdote elsewhere, but here it is again... in Technicolor!) In Junior High, I knew a kid named John -- we had English together. One day, I saw him reading Jurassic Park... (hipsters take note! This was before the movie -- before it was cool!) It looked intriguing to me, so I decided to get a copy and read it as well.

Well! Others noted, and derided, the fact that I had gotten the idea to read this novel from observing John. They called me a "copycat."

I've remembered this incident ever since, and it helped me to realize something about myself (something which I consider valuable): I am an unapologetic copycat. If I see someone else doing something smarter or just generally better than I do it, I try my best to emulate them. If someone is listening to music that sounds good to me, I begin to listen to that music. If I see someone reading an intriguing book, I read that book. Someone's devised a better process for test preparation? I use that method to prepare for my next test.

What was the source of my being scorned as a copycat for reading what John was reading? Clearly they had some notion that there was something proprietary in John's decision to read this book, and something lacking in my "mindless" decision to do the same (though in reality, I'd contend that I acted very mindfully). These attitudes strike me as having much in common with the attitudes I find standing in defense of intellectual property. I consider myself in opposition to the whole lot.

a. I hope your childhood traumas are not so serious that they impair your ability to reason.
b. Am I scary like that?

2) I think we all* (*not necessarily "all") have an ingrained reaction against the scenario where a man who comes up with an idea has that idea "stolen" by some "Big Evil Company" (BEC) which proceeds to make a bazillion dollars, while the poor innovator remains penniless. This certainly doesn't seem just.

Yet, I wonder. Given that our understanding of intellectual property holds that the innovator has created all of the wealth which that bazillion dollars represents in his innovation -- that the value does not come from the BEC's "mindless copying" -- then why isn't it the innovator who has the bazillion dollars before we ever think to intervene with our IP laws?

Because justice is not automatic. Justice is man-made and if no one acts to achieve it then it will not exist.

[DonAthos]

The lesson I wished to draw from the example of adverse possession is the importance of possession and use to establish claims to property rights. I did not intend to make the stronger claim that there is an analogy between adverse possession and the eventual ceding of intellectual property rights, and in fact there is not an analogy to be made. So please, lets back up a bit.

Okay, we're agreed that there's not an analogy to be made. (Though I thought you were drawing such an analogy when you'd said "Every user of a patented invention or owner of a book is as a squatter on a piece of real estate." I think you'll understand my confusion.)

There is some ambiguity in the use of the word 'rights'. It is a bridging concept between the field of ethics and the field of politics, and it is also used to refer to privileges constructed by contractual agreement (i.e. 'a right to exercise an option'). It can sometimes be necessary to clarify which context applies. In the case of adverse possession, there was a mismatch between what the legal formalities of title to a land specified and the facts on the ground. Ethically, the formal owner had no rightful claim on the land due to abandonment and so then politically (judicially) the legal title is amended to be correct.

I'm new to the "adverse possession" thing -- you may well be right. Though it's unclear to me that this is strictly an issue of "abandonment" rather than someone new seizing control. After all, it does not seem to be at issue how long it's been since the owner last tended to his land, but rather how long the new claimant has held continuous possession of it. (If an owner had clearly abandoned the land in question, but the new claimant was himself new to the scene, I don't know that he would take legal possession. Or there might be other legal means of determining "abandonment," but I'm just addressing myself to "adverse possession," as represented in that Wiki.)

I think that we're agreed that law of this nature -- dealing with issues of property abandonment -- is important, however, if that speaks to your point in raising it. Though a man owned a house, if he's been dead and buried for a hundred years, and the house abandoned all the while, and if someone else sets up there and makes a life for themselves, that is their property and needs to be recognized as such... even if thereafter descendants of the original owner come a-knocking.

In the absence of any legislated IP law inventors and authors would attempt to protect their interests via uses and misuses of contract law, the contracts being conditions imposed upon the sales of the inventions and texts and artwork. The current proliferation of end user license agreements (EULAs) for software is an example of an attempt to defend IP with contract law. To repeat myself, in the absence of legislated IP law we would instead have a judicial case law for IP entirely within the specialty of contract law, judging the validity and permissible scope of the clauses restricting reproduction and resale. What would you have to say about that, would you want to ban those contracts?

I have no interest in abridging or eliminating any area of the right to contract (though we're agreed that certain kinds of contracts are impermissible), nor do I understand why you would think I would. If two people wish to enter into any specific agreement, far be it from me to intervene. If you would say that the ends at stake are the same, that may well be, but I'm also interested in ensuring that the means are appropriate. Here, I think a person should recognize those rights of others which can be objectively demonstrated to exist (which includes property, but not "intellectual property"), and also be beholden to those contracts which he has personally agreed to. I would not hold him to "contracts" to which he has not given consent.

And come to it, I'm not certain that contract law, either in theory or in practice, would take the place of intellectual property, point for point. For instance, consider this case which Ayn Rand addressed in her essay on Patents and Copyrights:

As an objection to the patent laws, some people cite the fact that two inventors may work independently for years on the same invention, but one will beat the other to the patent office by an hour or a day and will acquire an exclusive monopoly, while the loser’s work will then be totally wasted. This type of objection is based on the error of equating the potential with the actual. The fact that a man might have been first, does not alter the fact that he wasn’t. Since the issue is one of commercial rights, the loser in a case of that kind has to accept the fact that in seeking to trade with others he must face the possibility of a competitor winning the race, which is true of all types of competition.

If we deal with these matters according to the contracts people willingly enter into (i.e. according to their actual rights), then the answer to this question becomes very different.

As the source of and first possessor of a new article of intellectual property it is only just that the artist or inventor be permitted to commercialize his property and sell it on any terms he pleases including restricting resales or reproductions, i.e. exercise his right of property.

I would say that anyone who owns a piece of property is permitted to commercialize his property and sell it on any terms he pleases (subject to those things we agree are not permitted generally). I don't agree if you would hold to the seeming implication that "the source and first possessor" has new/different rights, above and beyond anyone else. I believe that everyone has the same property rights generally, though different specific property.

But he cannot exercise those terms without limit because his customers have property rights as well, right founded on actual use and possession in the present rather than the remote past, up to twenty years in the past for inventions (and much longer for copyrights as they are not utilitarian and therefore less likely to be some second person's means of livelihood).

Well, I don't know if I agree that a specific, contractual limit to reproduction can not last longer than twenty years. If a person offers an "invention" with disagreeable contractual limits on reproduction, a person can always opt not to accept the deal. And as for this division between "utilitarian" patents and not-as-such copyrights...?

It's important to me, from time to time, to reintroduce the wider context in which we're working. In discussing intellectual property, we're supposedly dealing with man's rights -- the violation of which is an initiation of the use of force. Unless that kind of thing is just accounted empty rhetoric? But I've never taken it that way -- I take it seriously and literally. So if "twenty years" is the wrong figure, one year too long or two short in any individual case, then we are necessarily on the side of the initiation of the use of force in that case.

So to entrust such things to what we deem "less likely to be some second person's means of livelihood"...? Strikes me as way wrong. If what's at stake here is a person's means of livelihood, and their rights (which I relate back to being a life-or-death kind of thing), then I certainly don't want a one-sized-fits-all adjudication according to what "seems likely."

The boundary between the rights of the sellers and the rights of the buyers could be left to each product's contract of sale and each court case in each separate jurisdiction or we could have a uniform code of law for all IP products in all jurisdictions.

I prefer the uniformity and believe that best defends everyone's rights and enhances the trade value for everyone concerned. You may be unconvinced of the advantages of uniformity, but don't believe for a second that repealing IP laws would prevent attempts to control IP by other non-uniform means.

It's not that I'm unconvinced "of the advantages of uniformity," but that I don't like the cost, if that cost involves curtailing man's rights. There are all sorts of things that are non-uniform in society, because they're left to individual contracts and cases, including wages, prices, and etc. It's messy. But I'm pretty sure I'd be arguing against any proposal to give uniformity to any of those things, despite whatever apparent advantages such uniformity might arguably confer (and frankly, I suspect you and I would be in full agreement in those cases).

You would be cutting the head off of a hydra, which would grow ten-thousand heads and more to replace the one lopped off. If your ambition is to kill the IP hydra, you could not do it except by assaulting the freedom of contract in general.

I like the imagery! But no, I've no ambition to "kill the IP hydra." I've started to believe that IP is a paper creature, whatever its species -- a phantasm. And yes, I do want to banish any such shadows with... er... the candle of truth (I should really leave the imagery to you), but not for the sake of remaking and controlling society in some specific fashion; I want man's rights to be clearly recognized that they might be clearly defended. This is important to me. Whatever results would be duplicated through a rightful use of contract law, are fine with me. Whatever would be gained would be gained, whatever would be "lost" would be lost. I fight IP, not because I hate patents, per se, but because I hate that which is false. Yet I think the results would be better all around, because, in principle, I believe that rights -- proper rights, properly understood -- work like that.

Addendum to my last post: The Doctrine of Right of First Sale has its basis in copyright law. Without copyright law, there would be no Doctrine of Right of First Sale and you might today be not able to sell your used DVDs, games and other stuff.

On the subject of selling used games, and etc., I can't rightly predict what would happen "in a world without IP." If someone offered to sell me a game with the stipulation that I would not re-sell it for X amount of time, and if I agreed to that stipulation in my purchase, then I guess I should be held to it. Is this an unpalatable outcome? (This assumes, of course, that such contract provisions were held as proper, generally speaking... though I suspect that if you think the Doctrine of Right of First Sale is appropriate as a limitation to IP, you might hold it appropriate as a limitation on these kinds of contracts, too.)

a. I hope your childhood traumas are not so serious that they impair your ability to reason.

I think I'll choose not to read this in a too-insulting fashion. I'd like to preserve the bonhomie of a good back-and-forth for as long as reasonable.

But no, I don't expect that my "traumas" (which can also be called "memories," if we're feeling generous) impair my ability to reason, given that I remain on the correct side of this issue. Although... were my ability to reason sufficiently impaired, I guess I wouldn't know it! Ultimately, you'll have to weigh my arguments, such as they are, and decide for yourself.

As a further FYI, I share such information (apparently at my peril) partly in an effort at a more-honest communication. It isn't the case that at some early age I explicitly identified certain axioms, and I've just been working deductively from there on out. Sometimes my actual experiences weigh in on my thoughts and feelings. And when I recognize that -- when I have some insight into my own process -- I try to share it. Hopefully, with this context considered, the memories and experiences that I choose to share here can become more than fodder for an implication that perhaps the reason we disagree is that I'm psychologically impaired.

b. Am I scary like that?

I don't know that I consider my experience to be "scary," from my current perspective, or that there was much fear communicated in what I'd written. At the time it was unpleasant, that's for sure, though I never sought to make any amends for what "I'd done" -- I just kept on reading my book. For better or worse, my strategy has most often been to "ignore the haters" (though I do make occasional exceptions). In discussing IP, which my anecdote might be understood to cast as "law as enacted by petulant adolescents," I guess the "haters" have guns at their disposal, to force me to act against my benefit (and after all, perhaps John did have some sort of special idea claim on "the reading of Jurassic Park"? If I adopted the mentality and arguments that give support to IP, I think I'd at least have a shot at making his case).

But to answer you directly, no, you're not scary. I'm not "afraid" of intellectual property, except that I think it's a violation of man's rights... which is a pretty scary thing, I guess. So... maybe? (What is scary to me, though I try not to give it much thought, is the question of... if I'm right about this whole IP deal -- as I think I am -- what does it mean that so many prominent Objectivists are apparently so convinced of the legitimacy of IP? But that question won't help me resolve the actual matter, so I'm leaving it for later consideration.)

Because justice is not automatic. Justice is man-made and if no one acts to achieve it then it will not exist.

Perhaps. I think that the simpler reason as to why the innovator in my example is not wealthy with a bazillion dollars, is that he has not done what is necessary to be wealthy in fact -- he has not created the wealth. He has not created those items which people would trade their bazillion dollars to acquire. Those items do not yet exist. What exists is an idea. But that idea does nothing for people until it is put into practical effect, and if the innovator cannot do that -- if he does not in fact do it -- then he will create nothing.

I think that the person who creates the wealth (as in: actually creates the wealth, so that there exists more than nothing) will be the one who winds up wealthy. And this makes a rough sort of sense to me, in the same way that property belonging to he who invests the effort to create it makes sense.

If I'm right, then the "justice" you're talking about is a redistribution of wealth, from those who've created it to those who have not... which is to say, not justice at all.

[idrivewithmyeyesclosed]

no, they can say whatever they want. however, i believe owning certain frequency on the electromagnetic spectrum is ridiculous; and when we're talking about print media the point is moot.

[idrivewithmyeyesclosed]

Okay, we're agreed that there's not an analogy to be made. (Though I thought you were drawing such an analogy when you'd said "Every user of a patented invention or owner of a book is as a squatter on a piece of real estate." I think you'll understand my confusion.)



I'm new to the "adverse possession" thing -- you may well be right. Though it's unclear to me that this is strictly an issue of "abandonment" rather than someone new seizing control. After all, it does not seem to be at issue how long it's been since the owner last tended to his land, but rather how long the new claimant has held continuous possession of it. (If an owner had clearly abandoned the land in question, but the new claimant was himself new to the scene, I don't know that he would take legal possession. Or there might be other legal means of determining "abandonment," but I'm just addressing myself to "adverse possession," as represented in that Wiki.)

I think that we're agreed that law of this nature -- dealing with issues of property abandonment -- is important, however, if that speaks to your point in raising it. Though a man owned a house, if he's been dead and buried for a hundred years, and the house abandoned all the while, and if someone else sets up there and makes a life for themselves, that is their property and needs to be recognized as such... even if thereafter descendants of the original owner come a-knocking.



I have no interest in abridging or eliminating any area of the right to contract (though we're agreed that certain kinds of contracts are impermissible), nor do I understand why you would think I would. If two people wish to enter into any specific agreement, far be it from me to intervene. If you would say that the ends at stake are the same, that may well be, but I'm also interested in ensuring that the means are appropriate. Here, I think a person should recognize those rights of others which can be objectively demonstrated to exist (which includes property, but not "intellectual property"), and also be beholden to those contracts which he has personally agreed to. I would not hold him to "contracts" to which he has not given consent.

And come to it, I'm not certain that contract law, either in theory or in practice, would take the place of intellectual property, point for point. For instance, consider this case which Ayn Rand addressed in her essay on Patents and Copyrights:



If we deal with these matters according to the contracts people willingly enter into (i.e. according to their actual rights), then the answer to this question becomes very different.



I would say that anyone who owns a piece of property is permitted to commercialize his property and sell it on any terms he pleases (subject to those things we agree are not permitted generally). I don't agree if you would hold to the seeming implication that "the source and first possessor" has new/different rights, above and beyond anyone else. I believe that everyone has the same property rights generally, though different specific property.



Well, I don't know if I agree that a specific, contractual limit to reproduction can not last longer than twenty years. If a person offers an "invention" with disagreeable contractual limits on reproduction, a person can always opt not to accept the deal. And as for this division between "utilitarian" patents and not-as-such copyrights...?

It's important to me, from time to time, to reintroduce the wider context in which we're working. In discussing intellectual property, we're supposedly dealing with man's rights -- the violation of which is an initiation of the use of force. Unless that kind of thing is just accounted empty rhetoric? But I've never taken it that way -- I take it seriously and literally. So if "twenty years" is the wrong figure, one year too long or two short in any individual case, then we are necessarily on the side of the initiation of the use of force in that case.

So to entrust such things to what we deem "less likely to be some second person's means of livelihood"...? Strikes me as way wrong. If what's at stake here is a person's means of livelihood, and their rights (which I relate back to being a life-or-death kind of thing), then I certainly don't want a one-sized-fits-all adjudication according to what "seems likely."



It's not that I'm unconvinced "of the advantages of uniformity," but that I don't like the cost, if that cost involves curtailing man's rights. There are all sorts of things that are non-uniform in society, because they're left to individual contracts and cases, including wages, prices, and etc. It's messy. But I'm pretty sure I'd be arguing against any proposal to give uniformity to any of those things, despite whatever apparent advantages such uniformity might arguably confer (and frankly, I suspect you and I would be in full agreement in those cases).



I like the imagery! But no, I've no ambition to "kill the IP hydra." I've started to believe that IP is a paper creature, whatever its species -- a phantasm. And yes, I do want to banish any such shadows with... er... the candle of truth (I should really leave the imagery to you), but not for the sake of remaking and controlling society in some specific fashion; I want man's rights to be clearly recognized that they might be clearly defended. This is important to me. Whatever results would be duplicated through a rightful use of contract law, are fine with me. Whatever would be gained would be gained, whatever would be "lost" would be lost. I fight IP, not because I hate patents, per se, but because I hate that which is false. Yet I think the results would be better all around, because, in principle, I believe that rights -- proper rights, properly understood -- work like that.



On the subject of selling used games, and etc., I can't rightly predict what would happen "in a world without IP." If someone offered to sell me a game with the stipulation that I would not re-sell it for X amount of time, and if I agreed to that stipulation in my purchase, then I guess I should be held to it. Is this an unpalatable outcome? (This assumes, of course, that such contract provisions were held as proper, generally speaking... though I suspect that if you think the Doctrine of Right of First Sale is appropriate as a limitation to IP, you might hold it appropriate as a limitation on these kinds of contracts, too.)



I think I'll choose not to read this in a too-insulting fashion. I'd like to preserve the bonhomie of a good back-and-forth for as long as reasonable.

But no, I don't expect that my "traumas" (which can also be called "memories," if we're feeling generous) impair my ability to reason, given that I remain on the correct side of this issue. Although... were my ability to reason sufficiently impaired, I guess I wouldn't know it! Ultimately, you'll have to weigh my arguments, such as they are, and decide for yourself.

As a further FYI, I share such information (apparently at my peril) partly in an effort at a more-honest communication. It isn't the case that at some early age I explicitly identified certain axioms, and I've just been working deductively from there on out. Sometimes my actual experiences weigh in on my thoughts and feelings. And when I recognize that -- when I have some insight into my own process -- I try to share it. Hopefully, with this context considered, the memories and experiences that I choose to share here can become more than fodder for an implication that perhaps the reason we disagree is that I'm psychologically impaired.



I don't know that I consider my experience to be "scary," from my current perspective, or that there was much fear communicated in what I'd written. At the time it was unpleasant, that's for sure, though I never sought to make any amends for what "I'd done" -- I just kept on reading my book. For better or worse, my strategy has most often been to "ignore the haters" (though I do make occasional exceptions). In discussing IP, which my anecdote might be understood to cast as "law as enacted by petulant adolescents," I guess the "haters" have guns at their disposal, to force me to act against my benefit (and after all, perhaps John did have some sort of special idea claim on "the reading of Jurassic Park"? If I adopted the mentality and arguments that give support to IP, I think I'd at least have a shot at making his case).

But to answer you directly, no, you're not scary. I'm not "afraid" of intellectual property, except that I think it's a violation of man's rights... which is a pretty scary thing, I guess. So... maybe? (What is scary to me, though I try not to give it much thought, is the question of... if I'm right about this whole IP deal -- as I think I am -- what does it mean that so many prominent Objectivists are apparently so convinced of the legitimacy of IP? But that question won't help me resolve the actual matter, so I'm leaving it for later consideration.)



Perhaps. I think that the simpler reason as to why the innovator in my example is not wealthy with a bazillion dollars, is that he has not done what is necessary to be wealthy in fact -- he has not created the wealth. He has not created those items which people would trade their bazillion dollars to acquire. Those items do not yet exist. What exists is an idea. But that idea does nothing for people until it is put into practical effect, and if the innovator cannot do that -- if he does not in fact do it -- then he will create nothing.

I think that the person who creates the wealth (as in: actually creates the wealth, so that there exists more than nothing) will be the one who winds up wealthy. And this makes a rough sort of sense to me, in the same way that property belonging to he who invests the effort to create it makes sense.

If I'm right, then the "justice" you're talking about is a redistribution of wealth, from those who've created it to those who have not... which is to say, not justice at all.

i don't think anyone has the right to redistribute another's wealth but not always is everyone's wealth earned. those with unearned wealth will most likely face destruction.
imagine a person who is very rich and ruins their estate-if they're acting irrationally they may claim that it was their right to make whatever mistakes without paying the consequences; that is, without acting rationally or creating anything...the right to certain property just because one once had it.



I'll leave this as I posted it, but it should be noted I read one sentence of what I quoted in addition to, I believe, the initial post of the thread.
Good day.

Edited by idrivewithmyeyesclosed, 19 August 2012 - 03:35 AM.

[Nicky]

, i believe owning certain frequency on the electromagnetic spectrum is ridiculous

Property rights are the only method I know of, by which men can trade material values without conflict. But I'm open to other suggestions: how do you propose men should be using electromagnetic radiation for communication, without the exclusive right to a specific range of frequencies in a geographic area?

And if those ranges being used aren't controlled by the people using them, who should be in control of them? You, through your elected officials, by any chance?

Edited by Nicky, 19 August 2012 - 06:11 AM.