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How to Establish Intellectual Property Law?

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Our ideas about intellectual property are rooted in medieval law about real estate.  Patents are given to the “first” inventor (which is defined differently by different laws) and deny the reality of independent invention. Rational law would recognize that all independent inventors have the rights to the products of their own minds.  Also, rather than expiring, intellectual property would continue forever, like any other kind of property.
 
Johanna Blakely of the Norman Lear Center at the University of Southern California has a TED Talk about the importance of copying to the multi-trillion dollar fashion markets.  Copying is how trends develop. The buyers of originals are not the buyers of knock-offs (and vice versa). In fashions no patents or copyrights exist. Only trademarks are protected.
 
We still think of property as if it were land. You cannot copy land. Therefore, you must not copy an automobile transmission. No two farmers can plow the same land at the same time, so no two engineers can be allowed to develop the same process at the same time.
 
On a deeper psychological level, our laws on intellectual property are founded on a false doctrine of jealousy in love, which is based on a lack of self-esteem, and the desire to own and control another human being. “This is mine and no one can have it.” That is fine, for things that really are yours. Other people and the content of their minds are not yours.
 
We have examples of the value of the opposite mindset.  In 1661 Robert Boyle's "Sceptical Chymist" explained why the secretive methods of alchemy had to be replaced by open publication of reproducible results. It was a radical idea.  The proud (arrogant, in fact) creative people in the Homebrew Computer Club came together to show off their work. They shared ideas by implicit trade. Those who had something cool were highly regarded. It made the computer revolution possible.  However, it was not to last.
 
Look at your computer display. Open a window. Make it smaller by dragging the corner up. That is a logical XOR, either the bit is on or the bit is off. From that, one window overlays another, wholly or partially. That became a patent. Someone claimed it, years after it was standard operating procedure.
    “Ever since Autodesk had to pay $25,000 to “license” a patent which claimed the invention of XOR-draw for screen cursors (the patent was filed years after everybody in computer graphics was already using that trick), at the risk of delaying or cancelling our Initial Public Offering in 1985, I've been convinced that software patents are not only a terrible idea, but one of the principal threats to the software industry. As I write this introduction in 1993, the multimedia industry is shuddering at the prospect of paying royalties on every product they make, because a small company in California has obtained an absurdly broad patent on concepts that were widely discussed and implemented experimentally more than 20 years earlier.”  Read here “Patent Nonsense” by John Walker of Autodesk

 

 

 Patents are defined as broadly as possible in order to secure their rights against any and all similar but different competitors. Take xerography, for example. Many different chemical combinations and many different processes can be engaged to create copies of images. Xerox wants (wanted) not just a patent on the one they actually developed, but they use the one they actually developed as evidence of their claim to all other possible variations. Then when someone else does the same thing a different way, suits at law are supposed to sort that out, as if courts (judges, juries) are competent to evaluate any and every new technology. 3-D printing is now being developed by independent technologists in many different ways. Will someone then be able to claim the rights to all of them?
 
I see Henry Ford in his motorcar. I can build one, too. Of course mine will be materially different for many basic reasons - basic, metaphysical reasons from the nature of human intelligence.
A generation ago, computer programming instructors figured out that in any average introductory class, no two students will ever (likely) produce similar programs, even for the most basic of assignments. Therefore, any two programs that are arbitrarily "too similar" may easily be evidence of copying (cheating).  So, too, with other inventions. It would take an intellectual effort - having first stolen the plans - to slavishly copy without making any changes. 
 
Even when you have the blueprints, you may well lack the special insight of the original inventor. A process could be documented completely but its failure modes might be known only to the inventor. 
 
Enter “early automobile patents” (and similar phrases) into your search engine. The internal combustion engine itself was patented, of course, even though it is only a recombination of James Watts' steam engine. I mean the valves and chambers. The only new idea was putting the flame inside the engine, a tough nut to crack, indeed, but many ways to achieve it. Sparkplugs are the common solution, but Rudolph Diesel's engines achieved combustion by pressure alone, though modern engines do have "glow plugs." And on and on it goes.
 
Some libertarians attempt to justify property rights on the assertion (from John Locke) that you "mix your labor" with it to earn the right to it.  Undeveloped frontier land is offered as an example.  But what if you choose a buy-and-hold strategy, keeping the land as wilderness to watch its value increase as other property is developed?  
 
Also, applied to commercial and financial markets, this "mix your labor" theory would nullify any buy-and-hold investment strategy. Applied consistently in a libertarian utopia, you might lose your ownership in a joint-stock company if you fail to vote your shares, or otherwise display an active interest in the company's operations.  
 
Finally, when you steal someone's invention - unquestionable theft, let us grant: you steal the blueprints from the bedroom vault - if you have only stolen the ideas, then in order to profit from them, you must also "mix your labor" even if only to sell the plans to someone else.  Clearly this "mix your labor" theory cannot support even the right to land. It surely cannot be used to define and protect intellectual property.  
 
Read about the case of Charles M. Gentile and the Rock n Roll Hall of Fame. It is an example of the false philosophy behind such laws. 
 
Gentile was sued for his images of this public building. Architect I. M. Pei claimed all rights to the image. The museum was built with public money. It sits wide open to be seen from anywhere. After being sued, Gentile was ordered to destroy all copies of his work. Eventually an appeals court reversed the ruling at a cost of about $2 million to the artist. Interestingly, about 100 such buildings are protected by similar copyrights, including the New York Stock Exchange and the Chrysler Building.  (The NYSE Facade is a copy of a copy of a copy. See The Parthenon.)
 
Alternately, if an invention is property then, it never ceased to be property.  The government would act like a land office, registering the ownership deed. But land is finite and limited in occupation by the laws of physics. Ideas have no such limitation. So, independent invention and discovery must be allowed. But granted that, the property exists forever.  Instead we have a mystical fiction that 17 years or some other magic number is the correct length of time for a patent.  Right now under the Digital Millennium Copyright Act, a work is protected for the life of the artist plus 75 years, or plus 90 if the work is sold to a corporation.   That is not rational, but just arbitrary.
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Some libertarians attempt to justify property rights on the assertion (from John Locke) that you "mix your labor" with it to earn the right to it.  Undeveloped frontier land is offered as an example.  But what if you choose a buy-and-hold strategy, keeping the land as wilderness to watch its value increase as other property is developed?  
 
Also, applied to commercial and financial markets, this "mix your labor" theory would nullify any buy-and-hold investment strategy. Applied consistently in a libertarian utopia, you might lose your ownership in a joint-stock company if you fail to vote your shares, or otherwise display an active interest in the company's operations.  
 
Finally, when you steal someone's invention - unquestionable theft, let us grant: you steal the blueprints from the bedroom vault - if you have only stolen the ideas, then in order to profit from them, you must also "mix your labor" even if only to sell the plans to someone else.  Clearly this "mix your labor" theory cannot support even the right to land. It surely cannot be used to define and protect intellectual property.  
 

 What? Didn't Locke have a whole series of arguments to support his homesteading theory, or was it merely an assertion?

 

It is not clear why you think a "buy and hold" would not be supported by a Lockean homesteading theory. Why would buying and not developing land not be enough to own it? Presumeably because one did nothing to mix one's labor with it. But what are we picturing here? When someone buys land, they usually buy it from a previous owner who has either homesteaded or obtained the land in a similar contractual transfer way. Who is the investor in this picture buying the land from and holding it? If he is buying it from a person, then it is enough for the Lockean theory that that person obtained the land through homesteading or title transfer. If he isn't buying it from a person, then who is he buying it from? Otherwise, if one wants to hold the some virgin land for further development, of course Locke has no problem with this.

 

How this would even apply to shares in joint-stock companies eludes me. Shares are not homesteaded, they are traded by contractual transfer from the people who created the company. The resources of the company itself are probably created through title transfer, ultimately traceable back to original appropriation, so it is unclear how not having mixed one's labor (with the shares) would apply here.

Edited by 2046
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Our ideas about intellectual property are rooted in medieval law about real estate.  Patents are given to the “first” inventor (which is defined differently by different laws) and deny the reality of independent invention. Rational law would recognize that all independent inventors have the rights to the products of their own minds.

You do have the right to invent something the second time. Patents refer to commercial use of a design, not to the right to waste your time inventing it as many times as you like.

You see, patent laws govern how people work together in a free market, not how people work by themselves. If we work together, then there's no point to inventing something twice. Once is plenty. Of course, no one's forcing you to work together with others, you can just work independently. But you can't have your cake and eat it too: you can't work together and not work together in a free market, at the same time; you can't refuse to accept when someone beats you to an invention, but then expect the world to respect your re-invention and treat it as if it had any market value.

Patents are the acknowledgement of the fact that a re-invention has no market value. Inventing something a second time, when the first guy is giving you access to it already, has no value in a commercial setting. You are creating no value, you deserve no money for it. You have no case against patent laws banning you from selling your "invention". If someone came into your house and took it from you, then you'd have a case. But no one does that, no one cares what you do in your own house.

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Other people and the content of their minds are not yours.

Emphatically so.

 

It would take an intellectual effort - having first stolen the plans - to slavishly copy without making any changes. 

Hadn't thought of that before, but true.  Kudos!

 

But land is finite and limited in occupation by the laws of physics. Ideas have no such limitation. So, independent invention and discovery must be allowed. But granted that, the property exists forever.  Instead we have a mystical fiction that 17 years or some other magic number is the correct length of time for a patent.  Right now under the Digital Millennium Copyright Act, a work is protected for the life of the artist plus 75 years, or plus 90 if the work is sold to a corporation.   That is not rational, but just arbitrary.

 That's just it, isn't it?

You cannot consistently apply copyright law; Ayn Rand herself saw what that would lead to.  So what do you call an ideal which cannot actually be practiced by human beings on Earth, in reality? 

An expiration date on your property rights?  That's essentially the same as a limit to the size and success of any given company (since monopolism, in perpetuity, would be harmful. . . ?):  arbitrary, undefinable and unenforceable.

 

As a matter of fact, patent laws bear a striking resemblance to antitrust law.

 

 

You do have the right to invent something the second time. Patents refer to commercial use of a design, not to the right to waste your time inventing it as many times as you like.

You see, patent laws govern how people work together in a free market, not how people work by themselves. If we work together, then there's no point to inventing something twice. Once is plenty. Of course, no one's forcing you to work together with others, you can just work independently.

Now, I actually agree with you up until this point.  However. . .

 

But you can't have your cake and eat it too: you can't work together and not work together in a free market, at the same time; you can't refuse to accept when someone beats you to an invention, but then expect the world to respect your re-invention and treat it as if it had any market value.

Value should be determined by the market; by voluntary association and trade.  And if you reinvent the wheel and everybody realizes that you're just selling the same old thing under a fancy new name, you have no right to demand their money involuntarily.

But by the same principle, if I can reinvent something better than the original, then I deserve whatever people are willing to pay for it.

 

Patents are the acknowledgement of the fact that a re-invention has no market value.

If it's a carbon copy of the original then it holds the same market value.

 

Inventing something a second time, when the first guy is giving you access to it already, has no value in a commercial setting. You are creating no value, you deserve no money for it.

This begs several simultaneous questions.

1:  This assumes that the first guy is giving people access to it.  By the definition of property rights, he need not.

2:  This assumes that the second guy is attempting to sell an exact duplicate of the first guy's invention, for the same price.  If his product is better or cheaper then the second guy is, in fact, offering the greater value.

3:  To improve an existing patent, redesign it in some brilliant new way or simply manufacture its content, is a creation of value.

---

 

Now, let's assume for the sake of clarity that we're discussing something more like a forgery.  Let's assume that one person has invented something new and then someone else has come along and taken those exact same blueprints, signed their own name on it and passed it off as their own.

In that case, they would be creating no value and your post, while I still wouldn't agree with it entirely, would be almost completely correct.  And such an action would be visciously immoral; downright despicable. . . And entirely criminal.

 

For one person to pass someone else's invention off as their own, for profit, would be properly illegal- because that's fraud.

 

But can't you see how every truly great breakthrough since the Rennaisance, in the very least, could be considered patent infringement because of the hierarchal nature of technology?

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Ayn Rand succinctly showed, at one point, why the finite nature of the radio waves made it necessarily private- the specific relation between something's limitations and its status as property.

 

What I'd like to know is: if someone can own a concept (such as an invention; abstracted from each concrete instance of that invention), which can be shared and distributed infinitely without being consumed or diminished in any way whatsoever, then why the Hell can't I lay claim to the specific procedure of "cooking food"?  (What if I had invented "cooking food"?)

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What I'd like to know is: if someone can own a concept (such as an invention; abstracted from each concrete instance of that invention), which can be shared and distributed infinitely without being consumed or diminished in any way whatsoever, [...]

This problem is solved by current patent law and is one of the things alluded to by Ayn Rand in the article to which you refer.

 

[...] then why the Hell can't I lay claim to the specific procedure of "cooking food"?  (What if I had invented "cooking food"?)

Can you say "dropping context"? You have been given an answer to this non-problem before in one of the other IP threads.

We have a word for a person who intentionally avoids truth or reality because it doesn't fit with their preconceived notions.

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You caught me. I don't care about the truth; only those preconceived notions I think are true (?!?!!!).

Or am I after free and instant access to all of mankind`s combined knowledge, so that I can finally build my objectivinator and destroy ayn rand?!?? The world will never know for three more months. . .

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