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Intellectual Property: A Thought Experiment

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LOL,I'm not sure if NYC represents the best example of society functioning on reasonable application of property rights visa vis LFC, ie transfats, big gulps, handguns , ecigs, horses ect. :)

Oh no, not at all. I wasn't trying to say that NYC does a good job of upholding property rights (though I can think of worse places). Only that property is property, no matter where or when.

We have I think arrived at the idea that ownership and property refer to relationships between entities. People own things, it is morally right to 'see' this relationship and societies can make laws to reflect and protect that relationship.

Exactly.

Or... the one slight change I might make for myself is that not only can societies make laws to reflect and protect that relationship, they should. To the extent they do, they serve the purpose of government generally, which is to protect man's individual rights. When they do not protect that relationship, and worse -- when government itself violates that relationship -- then it stands the purpose of government upon its head. This is the path of tyranny.

Is it now where/when we discuss what the abstraction 'property' can/should or can not/should not apply to ? Is it only applicable to physicality?

Well... in my conversation with Eiuol, there are some more matters concerning Franz and Wolfgang I'd like to sort out before complicating that particular discussion with IP.

But I'm not going to say we can't talk about whatever you'd like, so long as it's on topic. :)

If we're going to ask whether property only applies to "physicality" (though I would prefer to use the term "material values," if for no reason but to keep us consistent with Rand's phrasing), let's first discuss why it applies to such material values in the first place.

Why do we need to think of material values as property? Why is it important to regard the piano as belonging to Franz, and Franz alone? Why do we have a concept of property at all, where material values are concerned? What good does it serve us?

I hope you don't mind -- I'd be happy to answer these questions myself, and I plan to do so -- but I'd like to hear first how you approach them.

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

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

Not virgin land, without inhabitants or signs of civilization; no.  But anything you do TO the land or WITH the land will allow you to define it ostensibly.   I would argue that land-ownership is no

Property rights facilitate trade in society by being an objective reference to settle ownership disputes. The concept of ownership, being fundamental to the principles of property rights and their applications, reflects the need for man to act in order to survive, reality does not provide the things of survival 'free', man has to manipulate reality through creation and productiion in order to survive and thrive.

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Ownership is not only related  to physicality.  There are many situations where multiple persons own a proportion of the same object.  If two people invest in a classic car - one invests 70%, the other 30% - that, of course, does not mean that one man owns the motor, windshield, tires, radio and the other owns the transmission, brake lights, etc.  Same for a ownership of a business.

 

Think about what it means to own stock in a company.  You may only own 1/100,000 of the available stock, but your stock is property.  There are complex rules that you agree to when you purchase stock regarding what rights you have, but these are conceptual and not concrete.  You may or may not have the right to vote who sits on the board of directors, etc., and this right to vote has value that is not reflected in a material object.

 

IP (patents, trademarks, copyrights, trade dress, etc.) are similarly complex, conceptual properties that a mature society develops to protect value that is not inherent in the physical object.  Property and Value are not ontological. (edit to add Property)

Edited by New Buddha
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Property rights facilitate trade in society by being an objective reference to settle ownership disputes. The concept of ownership, being fundamental to the principles of property rights and their applications, reflects the need for man to act in order to survive, reality does not provide the things of survival 'free', man has to manipulate reality through creation and productiion in order to survive and thrive.

Cool, thanks for that. I'll use this as an entry point for my thoughts on the subject of why we need property -- that is ordinary property/"material values" (like a piano) as property.

 

Property rights facilitate trade in society...

While it's true that property rights facilitate trade, that's not where I would start. We trade things that are not property, all the time. Also a man who never chooses to trade (material values), living as a hermit, still has property. And so I don't believe that trade explains the origin of property, or explains why we need that as a distinct concept.

 

...by being an objective reference to settle ownership disputes.

The fact that a formal recognition of property rights helps to provide an objective reference to settle ownership disputes is true, but it does not yet get to the heart of the matter. For why should there be "ownership disputes" in the first place? The very fact that there are "ownership disputes" implies that there is *already* a concept of property rights at play, predating their formal recognition or the creation of a system to adjudicate dispute (for the very concept of "ownership" is/implies property rights).

To put this another way, why would anyone care that he "owns" a thing in the first place? Why do we need to think of things that way? Why should we ever dispute what someone else claims to own?

 

The concept of ownership, being fundamental to the principles of property rights and their applications...

I don't think that there is a concept of ownership apart from "the principles of property rights and their applications," or vice-versa. So let's simplify this to:

 

The concept of ownership...reflects the need for man to act in order to survive...

Yes, but why? What is it about man and his "need" that requires him to develop "the concept of ownership" specifically? How does that aid him in his quest for survival?

It facilitates trade, yes, and settles dispute, yes -- but to what end? What are we trading and what are we disputing about, and why? What's at stake here?

 

...reality does not provide the things of survival 'free'...

This is taking us closer. But what are "the things of survival," and how does a concept of property help us in this regard?

 

...man has to manipulate reality through creation and productiion in order to survive and thrive.

Just so.

Here is where we arrive at the answer to the question. Or at least its threshold. This is what I'd like to expand upon, and explore.

Since we start here with "man," let us talk about the nature of man for a moment.

Man is a being of both mind and body. Where "body" is concerned, man has certain specific requirements if he is going to survive (and thrive). These requirements are physical in nature -- are material -- corresponding to the physical, material nature of the body.

For instance, man requires nutrition to survive -- he must have food. He must regulate his body's temperature and protect himself against the dangers of his environment -- he must have shelter. He must deal with invasive organisms, and accident -- he must have medicine. And so on.

All of these requirements -- food, shelter, medicine, and so forth -- are those things that "reality does not provide" for free. What is the cost? What does reality demand of us to obtain them? Reality demands that we perform those actions required to create (or gather or find/discover) food, shelter, medicine, etc.

When I say "those actions required," I mean physical actions. To gather those material things that man's body needs, a man must take physical action, which is "production." It is also true that man acts mindfully -- when he acts in this manner he is acting with both mind and body -- but a man's survival ultimately depends on taking these physical actions. We may contrast this with a desire or a wish, if you'd like, absent their subsequent physical implementation. A man may wish he had food. He may lie in his bed, thinking about food all day or all week. But this will not fill his stomach. In order to eat, he must take action -- physical action -- to secure his food and also to make use of it. Not because I say so, but because these are the facts of his situation, given man's nature.

Now, what about the question of "dispute"? Where does that come into play? All men need food to survive. All men need a banana (selected to represent food for its historical precedent in these discussions). But why should any man ever quibble over whether he may eat this or that banana? Why should he ever lay claim to "own" a particular banana?

This speaks to something particular about these material values, and how they relate to man's survival.

Consider that when one man eats a banana, that banana is consumed. It no longer exists in any fashion whereby another man could use it similarly, for survival. (Notwithstanding the fact that a banana may be split or shared, but I'll ask your indulgence. :))

This is the origin of dispute -- that when one man eats a banana, another man may not thereafter eat that same banana. Property is our solution to these sorts of disputes. What gives one man the right to eat some particular banana (or to give it to another man to eat, in trade or in charity, or to use it as a prop for his comedy routine) is the fact that he is the one who has secured the banana, or otherwise transformed it from the natural world, where it was not providing any benefit for anyone (because it was still up in the tree, perhaps), into an object that does provide that benefit. Into wealth.

We recognized earlier that some physical action was necessary to secure food, or the banana in question. Thus we accord the banana -- entailing the right to eat/dispose/consume the banana -- to the man who has performed that physical action. We now say that he owns the banana. It is his "property," by right, secured on the back of the labor he has performed.

But as we move forward, it is important to keep in mind the "why." Why do we account this banana to this man? The description of his "right" to the banana is a description of the mechanism -- the "how" (along with the justification for utilizing this particular mechanism)... but why did we desire such a mechanism to begin with? Why do that work?

Because of the nature of the banana. Because when one man uses the banana, another man cannot. This is the nature of having a body, which is physical, is material, and has physical, material needs.

To see this in better relief, please allow yourself to imagine a fantasy scenario in which this were not true. Imagine that the "consumption" of bananas, or of anything material, did not deplete them in any fashion. (To really do this right, we'll also have to imagine that one banana could be used simultaneously by any amount of people -- it's a stretch, I know, but I think the potential for understanding is worth it.)

If this were the case -- if two men could use the same banana equally, with no loss suffered by the other man's usage (not in any way, remember; not even in terms of waiting for the other man to finish eating) -- then I would argue to you that they would not have a cause to dispute the other man's use of it.

If there were no dispute over the banana, we should not have any reason to regard it as "belonging" to any one person (let alone codifying such a system), because that would no longer serve any purpose. We would not have a concept of property.

Here are the questions I'd initially asked of you:

 

Why do we need to think of material values as property? Why is it important to regard the piano as belonging to Franz, and Franz alone? Why do we have a concept of property at all, where material values are concerned? What good does it serve us?

Here are my answers.

We need to think of material values as property because we require material values to survive, and specific material values cannot be used by multiple people (in that a banana may only be eaten once, and by one man). Property is our response to this situation, anticipating and resolving disputes over who may use specific material values, so that people may use these material values by right, as opposed to by might (for absent property rights, and our recognition of the same, bananas would invariably go to the strongest ape, regardless of who had done the work of procuring them). It is our means to civilization.

Similarly, the piano in our scenarios may only be in one man's home. (Even if Franz and Wolfgang have some sort of arrangement whereby they exchange the piano every other Thursday, or what have you, it cannot be in both locales simultaneously, which is enough.) Franz has either built or traded to acquire his piano. He has thus done the work necessary to have the right to that piano.

And NOW.

As a preliminary segue to IP, we may ask ourselves: if Franz invents the piano (or whatever "design" you would account ownable), and if Wolfgang subsequently builds a piano of the same design in his own home, of his own materials, and etc., how does this relate to the above understanding of property?

In the case of the banana, if Franz has a banana (having scaled an unowned tree to acquire it) and if Wolfgang takes and eats that banana, Franz is out one banana (not to mention his initial investment, and also his means to survival). But what does Franz lose when Wolfgang builds his own piano? In the case of the banana, Franz and Wolfgang are engaged in a zero-sum game. There is only one banana, and it may only be used by one man or the other, which accounts for the potential for dispute. But in the case of the piano, there is not a zero-sum game. Originally there was one piano, but now there are two. Wealth has increased, and Wolfgang's getting richer does not make Franz any poorer. Franz continues to have his piano and may continue to use it in any fashion he'd like, which is to say that his property rights have not been infringed. ("Ideas," which are what we might otherwise account as having been stolen, are like the limitless fantasy bananas: everyone may partake and the stuff -- the idea -- does not diminish.)

My answer to this is that Wolfgang's building of his own piano is not the same kind of activity as taking Franz's banana. It does not satisfy the scenarios that gave rise to property in the first place. And if there is any question as to who rightly owns the piano in Wolfgang's home, we may resolve it as we do for any other material value. Who has performed the labor required to create that wealth? Wolfgang has. That is why I regard that piano as Wolfgang's piano, just as Franz rightly owns the piano that he has built.

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DA

I agree with what you have stated about property rights and how they relate to material value. I also envision IP in LFC to recognize the pianos in the example as being owned by F and W respectively. But I believe creation and manipulation of reality are more fundamental to ownership than the resultant things owned.

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DA

I agree with what you have stated about property rights and how they relate to material value. I also envision IP in LFC to recognize the pianos in the example as being owned by F and W respectively.

If we agree that Wolfgang owns the piano he has built, despite having used "Franz's design," then whatever disagreements remain (and I'm sure we have some), I believe that we have a substantial accord.

I furthermore believe that this brings us into conflict with Rand's argument for IP as stated in Patents and Copyrights. For Rand said:

 

By forbidding an unauthorized reproduction of the object, the law declares, in effect, that the physical labor of copying is not the source of the object’s value, that that value is created by the originator of the idea and may not be used without his consent; thus the law establishes the property right of a mind to that which it has brought into existence.

Wolfgang building this piano is "an unauthorized reproduction of the object." Rand's rationale is that Wolfgang's efforts, in coming to understand this how this piano ought to be built, securing the materials, and then building it, is not the source of that piano's value. She holds Franz to have created that value by originating the idea, and therefore she contends that Wolfgang may not build this piano without Franz's consent.

It is perhaps a secondary consideration as to whether or not anyone agrees with Ayn Rand's theory of IP. But my entire foray into this discussion was because I took issue with her theory, as stated, and as I understand it. I recognize that you, Eiuol, or anyone else may have some other theory of IP. There are many theories out there. Maybe some other theory of IP exists which satisfies my questions and arguments. I don't know. But if there is a proper theory of IP, I don't believe I've found it yet.

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In response to DonAthos #331,

 

I will stand corrected if I'm wrong, but I'm almost certain that under our current laws there is nothing that would prevent Wolfgang's building an identical replica of the piano for his own personal use - but that the laws (patents) are in place to prevent the manufacture and selling of multiple copies of the pianos (assuming that Franz has patented it) by Wolfgang.  Similar, if Franz has a registered trademark of the name "Franz" in a distinctive, cursive Font (think Baldwin), then it would also be a violation of trademark laws for Wolfgang to place the name "Franz" on the piano's that he intends to sell.

 

If someone wants to sit down and re-type Atlas Shrugged or photocopy each page, more power to them.  But the unauthorized printing and selling of the novel would be a violation of the laws in place to protect the value of the writer's work (or architect, video game company, or rock band, etc.).

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I will stand corrected if I'm wrong, but I'm almost certain that under our current laws there is nothing that would prevent Wolfgang's building an identical replica of the piano for his own personal use - but that the laws (patents) are in place to prevent the manufacture and selling of multiple copies of the pianos (assuming that Franz has patented it) by Wolfgang.

 

There's a song by Weird Al which needs to be shared.

 

https://www.youtube.com/watch?v=zGM8PT1eAvY

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It is perhaps a secondary consideration as to whether or not anyone agrees with Ayn Rand's theory of IP. But my entire foray into this discussion was because I took issue with her theory, as stated, and as I understand it. I recognize that you, Eiuol, or anyone else may have some other theory of IP. There are many theories out there. Maybe some other theory of IP exists which satisfies my questions and arguments. I don't know. But if there is a proper theory of IP, I don't believe I've found it yet.

I agree with Rand's theory, but it's important to note that what she said on IP specifically is minimal. I agree with her to the extent that Franz is the source to the type of piano having any value, and that source of value is a major reason to support any property. So for her the only question is the proper implementation of a legal system which protects property best. If Franz is the source of the piano's value, then Wolfgang is not since he helped Franz construct Franz's design. Wolfgang did less in regard to the piano's value, albeit an important role in a factory. It's important to recognize that some people are more important in production!

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Apologies, gentlemen -- it's been a trying few days over here. New Buddha, I'll have a reply for you hopefully soonish.

In the meantime, a question for Eiuol, to help clarify our terms going forward...

I agree with Rand's theory, but it's important to note that what she said on IP specifically is minimal. I agree with her to the extent that Franz is the source to the type of piano having any value, and that source of value is a major reason to support any property. So for her the only question is the proper implementation of a legal system which protects property best. If Franz is the source of the piano's value, then Wolfgang is not since he helped Franz construct Franz's design. Wolfgang did less in regard to the piano's value, albeit an important role in a factory. It's important to recognize that some people are more important in production!

When we use the term "value" in this way, speaking of the "source of the piano's value," what precisely are we talking about? What does "value" mean in this context?

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In response to DonAthos #331,

 

I will stand corrected if I'm wrong, but I'm almost certain that under our current laws there is nothing that would prevent Wolfgang's building an identical replica of the piano for his own personal use - but that the laws (patents) are in place to prevent the manufacture and selling of multiple copies of the pianos (assuming that Franz has patented it) by Wolfgang.

Hi New Buddha.

There are a few questions we could meaningfully ask about IP as it relates to Wolfgang building his own piano, at home, based on Franz's design. (And I include that information so that Eiuol understands we're not in a factory setting currently; this is a slightly different scenario.)

These questions are distinct. All good questions, but different:

1) Is it illegal for Wolfgang to build this piano per current US law?

2) Ought it be illegal for Wolfgang to build this piano, per Ayn Rand's theory of IP as expressed in Patents and Copyrights?

3) Does Ayn Rand's position on IP -- as exemplified by this scenario -- agree with her other arguments for property, or for rights, or her philosophy more generally?

4) Are Ayn Rand's views on IP correct? (I.e., do they meet the tests of reason and reality?)

While I think it's fair game to look at all of these aspects in their turn, the questions I've been dealing with are primarily #2-#4.

To be honest with you, I don't know for certain whether Wolfgang would be allowed to build this piano under current US law, or not. When participating in another thread on this subject, I at one point found this online:

 

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

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

As worded, I'd say that Wolfgang's building the piano is a violation. Now... I can't swear that this quote is or ever was accurate (I don't even remember where I pulled it from). And let's say that even if it is accurate, it might still not apply because of some sort of "fair use" clause or something, further along in the code (i.e. "except as otherwise provided").

Fair enough.

But (as an interesting subsidiary question) do Rand's arguments allow for anything like "fair use" in the first place? Were I to adopt the arguments of the Patents and Copyrights essay, as I understand them, I think I could make a fairly compelling claim that you should not be allowed to benefit from the property that I've created, without my consent, whether that's for your "personal use," or "parody," or "educational purposes," or for anything else. I suspect that I could also call you a "parasite" at that point, because that's seemingly de rigueur around these parts.

Anyways, I'm willing to concede the point to anyone who thinks he knows whether this is or is not currently illegal. My challenge is not primarily to the current law code, but to Rand's theory of IP.

 

Similar, if Franz has a registered trademark of the name "Franz" in a distinctive, cursive Font (think Baldwin), then it would also be a violation of trademark laws for Wolfgang to place the name "Franz" on the piano's that he intends to sell.

In one of my replies on this thread (the one to Marc K.), you'll find that I have no problem with what some regard as a "copyright," when that "copyright" is actually a voluntary agreement between trading parties. Here, too, I think that much of "trademark" would still be enforceable, even without Intellectual Property, as anti-fraud. After all, a man might reasonably want to buy a piano that Franz himself has built (possibly wanting to see Franz personally rewarded for his ingenuity). If Wolfgang were to act in a manner as to convince this prospective buyer to believe that his Wolfgang piano is actually a Franz piano (whether through a distinctive emblem or anything else) as a basis for sale, well, I would consider that fraudulent.

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I agree with Rand's theory, but it's important to note that what she said on IP specifically is minimal.

Minimal, yes. I believe that I could say something about this, too, but I'll forbear for now.

 

I agree with her to the extent that Franz is the source to the type of piano having any value, and that source of value is a major reason to support any property.

Can we agree on this? That the "source of value" is ultimately the reason to support a given claim to property (initially, absent complication; though obviously property may thereafter be traded or what have you).

The question that I've asked you, on what precisely "value" means in that phrase...? I'll come back to that in a moment.

 

So for her the only question is the proper implementation of a legal system which protects property best.

I think we should all be looking for the proper implementation of a legal system which protects property best. If the piano that Wolfgang builds is rightly Franz's piano, then the law should recognize that fact and act accordingly. If, however, the piano that Wolfgang builds in his own home, of his own materials, is Wolfgang's property, as I believe that it is, then the law ought to reflect that.

Are we agreed?

 

If Franz is the source of the piano's value, then Wolfgang is not...

Okay. At the point in the thread to which you're replying, we've moved out of the factory and into a slightly different scenario. Now it's Wolfgang building his own piano in his own home (though the design is in imitation of Franz's own piano). The thread moves fast, I understand.

But let's agree here: in all cases, if Franz is the source of the piano's value, then Wolfgang is not. If Wolfgang is the source of the piano's value, then Franz is not.

Furthermore, if Franz is the source of the piano's value, then (all else being equal, no trades on the table, no contractual obligations, the materials being Franz's or previously unowned, etc.) the piano belongs to Franz.

However, if Wolfgang is the source of the piano's value (pursuant to all of the same caveats), then the piano rightly belongs to Wolfgang.

Are we agreed that this is the litmus test?

If so, let's talk "value."

 

When we use the term "value" in this way, speaking of the "source of the piano's value," what precisely are we talking about? What does "value" mean in this context?

Of course you're still welcome to answer this question (/these questions) in your own words. But as I'd like to try to move this discussion to a point now that I have a few minutes, I'm going to take my own crack at it.

When Rand speaks of the "source of the value," and when we subsequently refer to the same, I think she's using "value" in a very specific sense. While one person may value a piano and another person may not, and while we would say in this case that the piano is "of value" or "a value" to the first person, but not to the second person, I do not believe this is what Rand means here.

A piano also, certainly, would have some sort of monetary value in the marketplace generally, or to any specific, interested buyer/trader. I do not believe that's what Rand means either.

Instead, I believe that her use of value refers to an objective utility (roughly speaking).

A banana is not valuable (in this sense) because Franz wants a banana, or is willing to pay any given amount for one. A banana is valuable because it is food -- it is an instance of the sustenance that human beings require to survive, as well as the value it has according to its flavor and potentially other things besides. It may well be that Franz is allergic to bananas and would never buy one, not for a single cent. To him, the banana has no value at all. Yet I think that we can still talk about the banana "having value" in this sense of objective utility.

When we ask for the "source of value" of the banana, what do we mean? I believe we mean that which has made the banana available or usable in this sense of "objective utility" to man. In other words, a banana in the trees cannot be eaten. It cannot provide sustenance nor impart its flavor, even if we recognize that these are characteristic of the banana generally.

The man who climbs the tree, procures the banana, and brings it back down -- whether to sell it at market, or feed it to his child, or etc. -- that man, through his actions, is the "source of value" where that particular banana is concerned.

Thus the banana -- that particular banana -- is his property.

Ayn Rand said:

 

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.

The banana, being a material resource, required the application of human knowledge and effort (climbing the tree) in order to become of use or value to men (meaning: now it can be eaten). It should therefore be private property, by the right of the man who has climbed the tree and brought the banana back down, where it can be eaten. It is his property, specifically, because he is the man who has applied the knowledge and effort required to procure this specific banana. He is the source of this banana's value.

Are we agreed?

Edited by DonAthos
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Instead, I believe that her use of value refers to an objective utility (roughly speaking).

And finite!

What was it she said about mortality bring the basis of morality?

While I don't believe she explicitly applied the same reasoning to property rights, it is nonetheless applicable.

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Food, not just bananas, would be an objective value using mortality as the basis of morality. Property, food easily falling in that category, should be an extension of that same reasoning process.

 

A quick search of my Irish CD (O'CD) provides no results for 'mortality near morality'.

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Clearly defined objective IP laws must be established. I know that sounds obvious, but I mean that IP laws must be very specific. Like songwriting; a melody can be copyrighted but a chord progression can't, because there are a limited amount of progressions but melodies are less finite. It takes experts in each field to work with the lawmakers. In a brand new field it becomes easier (not harder) to secure IP rights due to the absence of infingement risks. It's the worry of being infringed upon (as a creator) that requires government.

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Harrison said #338

What was it she said about mortality bring the basis of morality?

 It is only a living organism that faces a constant alternative: the issue of life or death. Life is a process of self-sustaining and self-generated action. If an organism fails in that action, it dies; its chemical elements remain, but its life goes out of existence. It is only the concept of “Life” that makes the concept of “Value” possible. It is only to a living entity that things can be good or evil.

-Galt's Speech

 

"to each according to his need"?

And I would've gotten away with it too, if it weren't for you meddling bourgeois.

 

Food, not just bananas, would be an objective value using mortality as the basis of morality. Property, food easily falling in that category, should be an extension of that same reasoning process.

Exactly what I was driving at.  Thank you.

---

 

My computer is my "property" because I hold the exclusive right to dispose of it.

 

I hold the "exclusive right to dispose of it" because if someone else did so without my permission, it would hinder my efforts to live morally.

 

It would "hinder my efforts to live morally" because it represents whatever actions I took to obtain it, with the understanding that I could then use it towards other ends of my own.  Hence, for someone else to interfere would disrupt my own chain of efficient causation.  To "disrupt my chain of efficient causation" is to divide my ends from my means; hence preventing me from living as a man should live.

Now that reasoning could be applied to intellectual property, as well.

 

I wonder who cares to try.

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