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Intellectual property

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Robert Romero

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9 hours ago, dream_weaver said:

On another thread addressing patents and copyrights, this poster thinks she must have known of Spooner. A search of the research CD does not return any results for "Spooner".

I'll have to add his paper on my Kindle to get to.

The link provided in that thread to Spooner's essay is broken.  This one works.  The Law of Intellectual Property

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21 hours ago, 2046 said:

Then how do you explain Spooner addressing it in 1855?

You're right that Rand didn't address it in her article, but it's possible she was not the most informed on the topic. We should not make the same mistake in assuming it wasn't raised at all.

Here he argued that property has its basis not in scarcity or tangiblility of an object, but in man's production. In order to undermine that, you would in effect have to undermine property itself.

Compare this to Rand's article and we can see some similarities. Spooner, however, arrives at his conclusions by very methodical arguments and considers various objections, and in general had a far less dogmatic tone in his work, I think it forms a far superior defense of IP on a libertarian basis.

If, as some think, Rand had been familiar with his work, she may have thought his addressing the objections listed therein were sufficient. As with her Intro to Obj. Epist., she did not do a full blown coverage, but went in depth into the area she recognized as having set herself apart.

As Mark Scott used to say in the opening of his radio show, "In the tradition of Locke, Jefferson, Paine, Spooner and Jackson . . ." Spooner makes more sense to me  now.

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Spooner offers a defense of property rights culminating in the beginning of his papers with:

SECTION IX.: Conclusions from the Preceding Principles.

The conclusions, that follow from the principles now established, obviously are, that a man has a natural and absolute right—and if a natural and absolute, then necessarily a perpetual, right—of property, in the ideas, of which he is the discoverer or creator; that his right of property, in ideas, is intrinsically the same as, and stands on identically the same grounds with, his right of property in material things; that no distinction, of principle, exists between the two cases.

Rand disagreed, in her CUI article, with Spooner’s notion of a perpetual right in the ideas.

The right to intellectual property cannot be exercised in perpetuity. Intellectual property represents a claim, not on material objects, but on the idea they embody, which means: not merely on existing wealth, but on wealth yet to be produced—a claim to payment for the inventor's or author's work. No debt can be extended into infinity.

She does not specify a time line, but identifies that the rights and interests of other involved (the investors/financial backers) need be taken into account in setting it.

She disagreed with Spooner’s seventh objection. To Spooner, if two men came forward with the same invention at the same time,

It is said that two men sometimes make the same invention; and that it would therefore be wrong to give the whole invention to one.

The answer to this objection is, that the fact that two men produce the same invention, is a very good reason why the invention should belong to both; but it is no reason at all why both should be deprived of it.

In this scenario, Rand’s CUI statement is:

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.

Spooner suggests that there at least three classes of deceivers with which to deal.

First, the whole class of pirates, who have a direct and powerful pecuniary interest, in plundering authors and inventors; because they thereby put into their own pockets some portion, at least, of that wealth, which would otherwise go to the authors and inventors themselves.

Secondly, men ambitious of the reputation and influence of wealth, who fear that their wealth may be eclipsed by the wealth of inventors.

Thirdly, political men, ambitious of intellectual reputations, who fear that their own would be eclipsed, as they really would be, by the reputations of both authors and inventors. The services rendered to mankind by great authors, and great inventors, are so incomparably superior, in brilliancy, permanency, and value, to any that can be performed by political men, (with possibly here and there a rare exception,) that it is not to be expected that the latter, with whom ambition is a ruling passion, should look with favor on such rivals as the former.

Rand’s division line, in CUI, identified and isolated the collectivists and conservatives, presumably against the individualists.

Today, patents are the special target of the collectivists' attacks—directly and indirectly, through such issues as the proposed abolition of trademarks, brand names, etc. While the so-called "conservatives" look at those attacks indifferently or, at times, approvingly, the collectivists seem to realize that patents are the heart and core of property rights, and that once they are destroyed, the destruction of all other rights will follow automatically, as a brief postscript.

Rand viewed property rights as political rights. Without property rights, she stated, no other rights could be practiced. With regard to property rights, she found little difference between the material and the conceptual, i.e.; the corporeal and incorporeal. And, of course, the mitigating difference Rand raises, is the moral principle that individual rights serve as their political basis.

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52 minutes ago, William O said:

Eioul, I think a good way to proceed would be to try to identify the most fundamental point at which you disagree with Objectivism. Objectivism is a hierarchy, so we should be able to draw a line and say "we agree about everything before this point, but beyond this point we diverge."

You presumably agree with the Objectivist metaphysics and epistemology, or at least you haven't explicitly objected to either of them. You have also said that you agree that life is the standard, which means you accept Rand's solution of the is-ought problem.

So, the next step is the virtues. Do you disagree with Rand's account of the virtues, or is that common ground as well?

I found this in another thread. I thought it was a refreshingly direct way to probe a question (given the overall context of this board), and respectful. So with respect to this ongoing conversation on IP, I wanted to take a shot at answering it here. With IP, where is the point where I diverge with Rand?

I agree with Rand about individual rights and property rights, generally. I disagree, however, that "the mind" of an inventor creates that material wealth which is, in reality, created by other people and other minds. I thus disagree that the inventor has any claim on that material wealth.

In the familiar case of Men A & B and their respective Machines, I do not agree that Man A has "created the value" of Machine B, because in reality, it is Man B who has performed both the mental and physical labor necessary for Machine B to exist (as such) and be of use. Accordingly Man B ought to have the right to Machine B, disposing of his own efforts for the furtherance of his own life.

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I too would like to clarify that I am primarily opposed to the regulation of what ought to remain a freedom to choose to act as patron or competitor in a free market.  With regard to Spooner's arguments, I consider ideas as property, to be more akin to the air we breathe example.  That which can be individually contained is properly owned,  that which is revealed remains free for others to assign their own value to.

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Part one of Spooner's paper sets about identifying his basis for the right to property, both material and intellectual. Part two he addresses several different objections thought of in his time. These continue resonate with the objections I'm seeing raised here.

SECTION II.: Objection Second.

The second objection, that is urged against the right of property in ideas, is, that, admitting, (what cannot with the least reason be denied,) that a man is the sole proprietor of an idea, so long as he retains it in his exclusive possession, he nevertheless loses all exclusive right of property in it the moment he communicates the idea to another person, because that other person thereby acquires as complete possession of the idea, as the original proprietor.

Spoiler

This is a very shallow objection, since it is founded wholly on the assumption, that if a man once intrust his property in another man’s keeping, he thereby loses his own right of property in it; whereas men are constantly intrusting their property in other men’s hands, in many different ways, and for many different purposes, as for inspection, for hire, for sale, for safe keeping, for the purpose of having labor performed upon it, and for purposes of kindness and accommodation, without their right of property being in the least affected by it. Possession has nothing to do with a man’s right of property, after that right has once been acquired. He can then lose his right of property, only by his own consent to part with it.

This impossibility of losing one’s right of property, otherwise than by his own consent, is involved in the very nature of the right of property, which is a right of dominion—that is, a right to have a thing subject to one’s will. It is an absurdity, a contradiction, to say that a man’s right to have a thing subject to his will, can be lost against his will; or can be separated from him by any other process than his own will that it shall be separated from him. Hence a man can never sell, or give away, any thing that is his, by any other process than an act of his will, namely, his consent to part with his right of property in it. Otherwise a man would lose his right of property in a thing, every time he suffered another to take possession of that thing. He could not intrust an article of property in another man’s hand for a moment, for any purpose whatever, without losing his right to it forever. Yet men habitually intrust their property in each other’s keeping, with perfect freedom, without their ownership, or right of property, being in the least impaired thereby.

No assertion could be more utterly absurd, in regard to any [43] corporeal thing, than that a man loses his right of property in it, by simply parting with his possession of it; for every day’s and every hour’s experience, both in business and in law, would give the lie to it. And yet the assertion is equally absurd, when made in respect to incorporeal things, as when made in respect to corporeal things. There is not so much as an infinitesimal difference between the two cases.

The admission, therefore, that a man owns an idea, as property, while it is in his exclusive possession, is an admission that he owns it forever after, in whosesoever possession it may be, until he has consented to part, not merely with his exclusive possession, but also with his right of property in it.

The only question, then, on this point, is, whether it is to be presumed, simply from the fact that a man voluntarily parts with the exclusive possession of his idea, that he therefore consents to part also with his exclusive right of property in it? In other words, whether it is to be presumed that a man consents to part with his exclusive right of property in his idea, simply from the fact that he makes that idea known to another person?

To answer this question requires a little analysis of the nature of the act, on which the presumption, if it exist at all, is founded.

In the case of a corporeal commodity, the act of making it known, and the act of giving possession of it, are distinct acts—the first not at all implying the last. But in the case of an idea, the act of making it known, and the act of giving possession of it, are necessarily one and the same act; or at least one necessarily involves the other. Yet, although the act of making an idea known, and the act of giving possession of it, are, in reality, one and the same act, still the act has two distinct aspects, in which it may be viewed, viz.: first, that of simply making the idea known (as in the case of making known a corporeal commodity); and, secondly, that of giving possession of it. And the question proposed will be simplified, and more easily and conclusively [44] answered, by considering the act in each of these aspects separately.

The first question, then, is, whether it is to be presumed that a man intends to part with his exclusive right of property in an idea, simply because he makes the idea known to another person?

Obviously there is no more ground, in nature, or in reason, for presuming that a man intends to part with his right of property, in an idea, simply because he describes it, or makes it known, to another person, than there is for presuming that he intends to part with his right of property, in any corporeal commodity, simply because he describes it, or makes it known, to another person. If a man describe his horse to another person, nobody presumes therefrom that he intends to part with his right of property in his horse. And it is the same of every other corporeal commodity. What more reason is there for presuming that he intends to part with his right of property in an idea, simply from the fact that he describes the idea, or makes it known, to his neighbor? Certainly there is none whatever, if we but regard the act, (as we are now attempting to do,) simply as making known the idea, and not as giving possession of it. On any other principle than this, men could not talk about their property to their neighbors, without losing their exclusive right to it.

Nothing, therefore, could be more entirely farcical, than the notion, that a man loses his exclusive right of property, in an idea, simply by making the idea known to other persons—provided, always, that the act of making the idea known, be regarded simply as such, and not as giving possession of it.

Let us now look at the act of making known an idea, in its other aspect, viz.: that of giving possession of it.

Here the question is, whether it is to be presumed that a man intends to part with his right of property in an idea, simply because he puts the idea into the possession of another person?

Here, too, there is manifestly no more ground, in nature, or in reason, for presuming that a man intends to part with his right [45] of property, in a valuable idea—that is, an idea having an important market value—simply because he gives it into the possession of another person, (without receiving any equivalent, or otherwise indicating any intention to part with his right of property in it,) than there is for presuming that he intends to part with his right of property, in any corporeal commodity, of the same market value with the idea, simply because he gives such commodity into the possession of another person (without receiving any equivalent, or otherwise indicating any intention to part with his right of property in it). It is just as improbable, in reason, and in nature, that a man would gratuitously part with his right of property in an idea, that was worth in the market a hundred, a thousand, or a hundred thousand dollars, as it is that he would gratuitously part with his right of property, in a corporeal commodity, of the same market value.

The legal presumption, therefore, as to whether a man does, or does not, intend to part with his right of property in an idea, when he puts that idea into the possession of another person, will depend very much upon the market value of the idea. In short, the legal presumption will be governed by precisely the same principles, as in the case of a corporeal commodity.

To illustrate these principles. If one man give to another the possession of a corporeal commodity, of so small value as a nut, an apple, or a cup of water, for example, without saying whether he also gives the right of property in it, the legal presumption clearly is that he does intend to give the right of property. Such is the legal presumption, because such is clearly the moral probability, as derived from the general practice of mankind. But if a man were to give to another the possession of a corporeal commodity, of so large value as a horse, a house, or a farm, without receiving any equivalent, and without specially making known that he also gave the right of property in it, the legal presumption clearly would be, that he did not intend to give the right of property. Such would clearly be the legal presumption, solely because such would clearly be the moral probability, as derived [46] from the general practice of mankind. But where the value of a corporeal commodity is neither so great, on the one hand, nor so small, on the other, as to furnish any clear rule of probability, as to whether the owner intended to reserve his right of property in it, or not, no absolute legal presumption, as to his intentions, can be derived solely from the fact of his giving possession of the thing itself; and consequently his intention, as to parting with his right of property, or not, may need to be proved by other evidence.

In the case of intellectual property, the legal presumption would follow the same rules of moral probability, as in the case of material property—that is, it would follow the rule of probability, where the probability, as derived from the general practice of mankind, was clear. But where the probability was not clear, the intention of the owner would be a fact to be proved by circumstances. If, for example, one man gave possession to another of an idea, that either had a merely trivial market value, or no market value at all, (like the ideas which men usually give freely to each other in conversation,) without otherwise indicating any intention as to parting with his right of property in it, the legal presumption, like the moral probability, would be, that he did intend to part with his exclusive right of property in it. But if, on the other hand, he gave possession of an idea, that had a large market value, without otherwise indicating his intention as to parting with his right of property in it, the legal presumption, like the moral probability, would be that he did not intend to part with his right of property. But where the value of the idea was neither so small, on the one hand, nor so large, on the other, as to furnish a clear rule of probability as to the owner’s intentions, the fact of his intention would be open to be proved by circumstances.

Of course a man could always reserve his right of property, in ideas of the smallest value, or part with his right of property, in ideas of the largest value, by specially making known that such were his intentions.

[47]

Whether, therefore, the act of making known an idea, be regarded simply as making it known, (as in the case of making known a corporeal commodity,) or as also giving possession of it, it affords no ground for presuming that the owner intended to part with his exclusive right of property in it, provided the idea be a valuable one for the market; because it is naturally as improbable, that a man would gratuitously part with his right of property, in an idea, that would bring him an important sum in the market, as it is that he would gratuitously part with his right of property, in a corporeal commodity, that would bring the same sum in the market.

If it were possible for the law to regard the act of making an idea known, simply as making it known, (as in the case of making known a corporeal commodity,) and not also as giving possession of it, it would clearly be the duty of the law so to regard it, whenever the idea was one that had an important value in the market. And why should the law so regard it? First, because such would clearly be the intention of the owner of the idea. When he describes his idea to his neighbor, he no more intends to convey to him any valuable property right in the idea itself, beyond a mere knowledge of it, than he intends to convey a valuable property right in a corporeal commodity, beyond a mere knowledge of it, when he describes such commodity to his neighbor. His intention, in either case, is simply to convey a bare knowledge of the idea, or of the corporeal commodity, and nothing more. And his intention should be taken for what it really is, and for nothing else, if that be possible.

A second reason to the same point is this. The one, to whom the owner communicates an idea, had no claim to it. He did not produce it. He pays nothing for it. He had no claim upon the owner to furnish it to him. The owner did him a kindness, by giving him a simple knowledge of the idea, without any other right. These are sufficient reasons why, after the idea is made known to him, he should claim no further rights in it, than the owner intended to convey to him. They are also sufficient reasons [48] why the law should, if it be possible, give such a construction, and only such a construction, to the act making known the idea, as the owner intended.

But since the act of making an idea known, necessarily involves the giving possession of it, the law must, perhaps, necessarily regard it as giving possession of it. If so, the owner, when he makes an idea known, must take all the consequences that necessarily follow from giving possession of it. We have seen what those consequences are, to wit. Where the idea has a merely trivial market value, the presumption clearly is, that the owner intends to part with his exclusive right of property in it. Where the idea has a large market value, the presumption clearly is, that he does not intend to part with his exclusive right of property in it. But where the market value of the idea is neither very important, nor really unimportant, no very strong presumption either way can arise from the simple fact of giving possession; and the owner’s intention will be open to be determined by other circumstances.

But there are very weighty reasons of policy, as well as of justice, why the fact, that a man makes known an idea, or gives possession of it, should, in no case, where his intentions are at all doubtful, be construed unfavorably to his retaining his right of property in it; and why the rule should at least be as stringent, in favor of the owner, in the case of ideas, as in the case of material commodities of the same market value. These reasons are as follows.

First. Because it is manifestly contrary to reason and justice to presume that a man intends any thing, adverse to his own rights and his own interests, where no cause is shown for his doing so. This reason is as strong in the case of an idea, as in the case of a material commodity.

Secondly. Because men will be thereby discouraged from producing valuable ideas; from making them known; from offering them for sale; and from thereby enabling mankind to purchase, and have the benefit of them. The law should as much [49] encourage men to produce and make known valuable ideas, and offer them for sale, as it does to produce and make known valuable material commodities, and offer them for sale. It should therefore as much protect a man’s right of property in a valuable idea, after he has produced it, and made it known to the public, and offered it for sale, as it should his right of property in a valuable material commodity, after he has produced it, and advertised it to the public. It would be no more absurd or atrocious, in policy, or in law, to deprive a man of his right of property in a valuable material commodity, as a penalty for exhibiting or offering that commodity to the public, than it is to deprive a man of his right of property in a valuable idea, as a penalty for bringing that idea to the knowledge of the public. If men cannot be protected in bringing their valuable ideas into the market, they will either not produce them, or will keep them concealed as far as possible, and strive to realize some profit by using them as far as they can, in private. In short, they will do just as men would do with their material commodities, if they were not protected in making them known to the public—that is, either not produce them, or keep them concealed, and use them in private, instead of offering them for sale to those who would purchase and use them, for their own benefit, and the benefit of the public. The law cannot compel men to produce valuable ideas, and disclose them to the world; it can only induce them to do it. And it can induce them to do it, only by protecting their right of property in them, or by making some other compensation for them.

Thirdly. The law ought not only to encourage mankind to trade with each other, but it ought to encourage them to trade honestly, intelligently, and therefore beneficially; and not knavishly, blindly, or injuriously. It ought, therefore, to encourage them to exhibit their commodities, and make known their true qualities in the fullest manner, to those who propose to become purchasers. If, therefore, a man have an idea to sell, he should be encouraged to make its true character and value fully known to the intended purchaser. But this he can do only by putting [50] the idea into the possession of the proposed purchaser. This act, then, which the interests of the proposed purchaser require, and which the owner consents to for the satisfaction, safety, and benefit of the proposed purchaser, certainly ought not to be construed against the rights of the owner; any more than the fact, that the owner of any material commodity gives it into the hands of a proposed purchaser, in order that the latter may inspect it, and judge whether it be for his interest to purchase it, ought to be construed unfavorably to the rights of the owner.

No law could be more absurd in itself, or hardly more fatal to honesty in trade, or even more destructive to trade itself, than a law, that should forbid the owner of a commodity to exhibit it, submit it freely to inspection, or even give it into the possession of a proposed purchaser, for examination and trial, except under penalty of thereby forfeiting his right of property in it. Commercial society could not exist a moment under such a principle. In fact, neither civil, social, nor commercial society could exist under it. And the principle is just as absurd, fatal, and destructive, when applied to ideas, as it would be if applied to material commodities.

In the traffic in material commodities, the law encourages honesty, confidence, disclosure, examination, inspection, and intelligence, by protecting the rights of the true owner, even though he surrender the commodity into the exclusive possession of a man, who proposes to purchase it. This is more than is ever necessary in the case of an idea; for there the owner always retains an equal possession, with the individual to whom he communicates the idea. How absurd and inconsistent, then, is it to say that the owner of the idea, loses his right of property in it, by allowing another simply to participate with himself in its possession, while the owner of a material commodity retains his right of property, notwithstanding he surrender to another the exclusive possession.

If the owner of a house admit a person into his house, either on business, or as a friend, or for inspection as a proposed purchaser, [51] he thereby as much admits such person to an equal possession with himself of the house, as the owner of an idea, admits a man to an equal possession of it, when he admits a friend, neighbor, or proposed purchaser, to a knowledge of that idea. And there is as much foundation, in justice, and in reason, for saying that the owner of the house thereby loses his exclusive right of property in his house, as there is for saying that the owner of the idea thereby loses his exclusive right of property in his idea.

So also, if the owner of a farm admit a man upon his farm, in company with himself, for any purpose whatever, he as much admits such person to an equal possession of it, for the time being, as the owner of an idea admits a man to an equal possession with himself, when he admits such person to a knowledge of that idea. And there is as much foundation, in justice, and in reason, for saying that the owner of the farm thereby loses his exclusive right of property in his farm, as there is for saying that the owner of the idea thereby loses his right of property in his idea.

It cannot be said that there is any want of analogy between these cases of the house and the farm, on the one hand, and of the idea on the other, for the reason that, in the cases of the house and the farm, the joint possession is temporary, but that, in the case of the idea, the joint possession is necessarily perpetual—(inasmuch as a man cannot at will be dispossessed, or dispossess himself, of an idea, after he has once become possessed of it). This difference in the cases is wholly immaterial to the principle, for the reason that, if equal possession were to give equal right of property, it would give it on the first moment of possession; and the one, who should thus acquire an equal right of property, would have thenceforth as much right to make his possession perpetual, as would the original owner.

This conclusion is so obvious and inevitable, and would be so fatal to all rights of property, that where one man thus admits another upon his premises, the law does not even consider it a [52] case of joint possession, for any legal purpose whatever, except to protect the person admitted from violence during, and on account of, such occupation as he has been voluntarily admitted to. But for any purposes of property, control, use, ownership, or dominion, against the will of the true owner, it is not, in law, a case even of joint possession. And if this be a sound principle, in the case of the house, or the farm—as it unquestionably is—and one indispensable to the co-existence of social life and the rights of property—it is an equally sound principle, when applied to an idea.

On this principle, then, a person admitted, by its owner, to the knowledge or possession of an idea, without any intention, on the part of the owner, to part with any right of property in it, is not entitled even to be considered a joint possessor of the idea, for any legal purpose whatever, beyond the intention of the owner, except for the simple purpose of giving him a lawful protection from violence during, and on account of, such a possession as the owner has voluntarily admitted him to. For any of the purposes of property, control, use, or dominion, against the will of the true owner, he is no more in the legal possession of the idea, than, in the cases before supposed, the man admitted by the owner into a house, or upon a farm, is in legal possession of such house or farm.

In short, the general principle of law is, that where one man intrusts his property in another man’s possession, the latter has no right whatever to use it, otherwise than as the owner consents that he may use it. Not being the owner of it, he can exercise no kind of dominion over it, except such as the owner has given him permission to exercise. If he do use it, without the owner’s permission, and any inconvenience be occasioned to the owner thereby, or the property come to any harm in consequence, he becomes legally liable to pay the damages. Or if he use the property for purposes of profit, without the owner’s permission, the profits belong to the owner of the property, and not to the one having possession of it.

[53]

These are the general principles of the law of nature in regard to property intrusted by one man to the keeping of another. And they are as applicable to incorporeal property—ideas, for example—as they are to corporeal property.

The only exception to these principles, that is of sufficient importance to be noticed here, is where the keeping of another’s property is attended with expense, as a horse, for example, which must be fed. In such a case, if the owner have made no provision for the support of the horse, the man having possession of him may use him enough to pay for his keep. But the principle of this exception would not apply at all to intellectual property—an idea, for example—which one man had intrusted to another; because the keeping of it would be attended with no expense. The man having it in his possession, therefore, would have no right to use it, without the owner’s consent.

The conclusion, therefore, is, that when one man communicates a valuable idea to another, without any intention of parting with his exclusive right of property in it, the latter receives a simple knowledge, or naked possession, of the idea, without any right of property, use, control, or dominion whatever, beyond what the true owner intended he should have.

To conclude the argument on this point. There is one monstrous inconsistency, or more properly one monstrous absurdity, in the laws, as at present administered, relative to intellectual property. It is this—that unknown ideas are legitimate objects of property and sale; but that known ideas are not.

Thus the law, as now administered, holds, that if a man can make a contract, for the sale of his ideas, without first making them known, or enabling the purchaser to judge of their value, or of their adaptation to his use, they are a sufficient consideration for the contract, and consequently legitimate objects of property and sale; and the contract is binding upon the purchaser; and the seller, upon the delivery of the ideas, can compel the payment of the price agreed upon for them. But if he first make his ideas known, so as to enable the proposed purchaser to see what [54] he is buying, and judge of their value, and their adaptation to his uses, they are no longer legitimate objects of property or sale; are an insufficient consideration for a contract; and the owner thereby loses his power of making any binding contract for the sale of them; and loses his exclusive property in them altogether.

Thus the principle of the law, as now administered, clearly is, that if a man buy ideas, without any knowledge of them, he is bound to pay for them. But if he buy them, after full inspection, and proof of their value, he is not bound to pay for them. They are then no longer merchandise. In short, the principle acted upon is, that unknown ideas are objects of property and sale; but known ideas are not.

To illustrate. If a man contract with the publisher of a newspaper, to furnish him a sheet of ideas, daily or weekly, for a year, for a given sum—the ideas themselves being of course unknown at the time of the contract, and their intrinsic value being necessarily taken on trust—such ideas are legal objects of property and sale, and a sufficient consideration for the contract; and the contract is therefore binding upon the purchaser, even though the ideas, when they come to be delivered, should prove not to be worth half the price agreed upon. So, too, if a man contract with a lawyer to furnish him legal ideas; or with a preacher to furnish him religious ideas; or with a physician to furnish him medical ideas—the ideas themselves being unknown at the time of the contract, and their value therefore necessarily taken on trust—such ideas are a sufficient consideration for a contract; and consequently legitimate objects of property and sale; and must be paid for, on delivery, even though they should prove to be not half so valuable as the purchaser had anticipated they would be. But if a man have a mechanical idea to sell, and for the satisfaction of the proposed purchaser, exhibit it to him, and demonstrate its value, and its adaptation to his purposes, before asking him to purchase it, the law, as now administered, holds that it is no longer the exclusive property of the original [55] owner; no longer an object of sale between these parties; but has already become the joint property of both, without any consideration for it having passed between them.

Now, it is plain that this principle is as false in policy, as false in ethics, and as false in reason, as would be the same principle, if applied to corporeal commodities—making them lawful objects of property and sale, provided contracts for them be entered into before the purchaser sees them, or knows what they are; but no longer objects of property or sale, after those, who wish to purchase and use them, shall have inspected them, and become satisfied of their value, and adaptation to their purposes.

It cannot be said that there is a difference between the two classes of cases—that in the case of the lawyer, the preacher, and the physician, they sell not their ideas, but the labor of producing them, and of making them known, or delivering them; whereas in the case of the inventor, he seeks to sell, not the labor of producing, or making known, or delivering his idea, (for that labor has already been performed on his own responsibility,) but the idea itself. This cannot consistently be said, because it is really the idea only that is paid for, or for which pay is claimed in either case. The labor, neither of producing, nor of making known, or delivering ideas, has any intrinsic value, independently of its products—that is, independently of the ideas produced, made known, or delivered, by it. We pay for labor, whether intellectual or physical, only for the sake of its products. We do indeed call it paying for labor, instead of paying for its products. And, in one sense, we do pay for the labor, rather than for its products; because we pay for the labor, taking our risk whether its products will be of any value. Yet, in reality, it is only the products of the labor, that we have in view, when we buy the labor. No one buys labor for its own sake; nor for any other reason than that he may thereby become the owner of its products. By buying the labor, one makes himself the owner of its products; and this is the whole object of buying the labor itself. The difference, therefore, between buying labor, and buying [56] the products of labor, is a difference of form merely, and not of substance. The products of labor are all that make labor of any value, and all that are really had in view when the labor is purchased.

This difference in the two cases—that is, between selling ideas themselves, and selling the labor of producing, and making known, or delivering, ideas—is immaterial for still another reason, viz.: that it would be absurd to say that the intellectual labor of producing ideas, or the physical labor of speaking, printing, or otherwise delivering them, was a legitimate object of property or sale, unless the ideas themselves, thus produced and delivered, were also legitimate objects of property and sale. To say this would be as absurd as to say that the labor of producing or delivering corporeal commodities, was a proper object of property and sale; but that those commodities themselves were not proper objects of property or sale.

To be consistent, therefore, the law should either hold, that the labor of producing, and making known, or delivering, ideas, is not an object of property and sale; or else it should hold that the ideas themselves are objects of property and sale.

The object of buying known ideas, and of buying the labor that produces, and makes known, or delivers unknown ideas, is the same, viz.: to get ideas for use. And to say that an idea is not as legitimate an object of property and sale, as is the labor of producing or delivering it, is just as absurd as it would be to say that wheat is not itself a legitimate object of property or sale, but that the labor of producing and delivering wheat is a legitimate object of property and sale.

All intellectual labor, therefore, that is employed in producing ideas, and all physical labor, (including manuscript writing, and printing, as well as speaking,) that is employed in making known ideas, should be held to be no subjects of property or sale, and no sufficient considerations for a contract; or else all the ideas produced by intellectual labor, or delivered or made known by physical labor, should also be held to be legitimate subjects of [57] property and sale, and sufficient considerations for contracts. And if they are legitimate subjects of property and sale, and sufficient considerations for contracts, before they are made known to a proposed purchaser, and before he can see what they are, or judge of their value, or of their adaptation to his use, it is absurd and inconsistent to say that they are not at least equally legitimate subjects of property and sale, and quite as valid considerations for contracts, after they have been made known to a proposed purchaser, and he has examined them, seen what they are, and ascertained their value, and their adaptation to his use.

The argument of possession is of no force against this view of the case, because, as we have seen, the possession given, is simply the knowledge, or naked possession, of the idea, without any right of use, property, contract, or dominion, beyond what the true owner intended to convey, when he made the idea known.

SECTION XI.: Objection Eleventh.

It is said that ideas are unlike corporeal commodities in this respect, namely, that a corporeal commodity cannot be completely and fully possessed and used by two persons at once, without  collision between them; and that it must therefore necessarily be recognized as the property of one only, in order that it may be possessed and used in peace; but that an idea may be completely and fully possessed and used by many persons at once, without collision with each other; and therefore no one should be allowed to monopolize it.

Spoiler

This objection lays wholly out of consideration the fact, that the idea has been produced by one man’s labor, and not by the labor of all men; as if that were a fact of no legal consequence; whereas it is of decisive consequence; else there can be no exclusive right of property, in any of the productions or acquisitions of human labor. If one commodity, the product of one man’s labor, can be made free to all mankind, without his consent, then, by the same rule, every other commodity, the product of individual labor, may be made free to all mankind, without the consent of the producers. And this is equivalent to a denial of all individual property whatsoever, in commodities produced or acquired by human labor.

In truth, the objection plainly denies that any exclusive rights of property whatsoever, can be acquired by labor or production; because it says that a man, who produces an idea—(and the same principle would apply equally well to any other commodity)—has no better right of property in it, or of dominion over it, than any and all the rest of mankind. That is, that he has no rights in it at all, by virtue of having produced it; but has only equal rights in it with men who did not produce it. This certainly is equivalent to denying, that any exclusive right of property, can be acquired by labor or production. It is equivalent to asserting, that all our rights, to the use of commodities, depend simply upon the fact that we are men; because it asserts that all men have equal rights to use a particular commodity, no matter who may have been the producer.

This doctrine, therefore, goes fully to the extent of denying all rights of property whatsoever, even in material things (exterior to one’s person); because all rights of property in such [77] material things, have their origin in labor; (that is, either in the labor of production, or the labor of taking possession of the products of nature;) not necessarily in the labor of the present possessor; but either in his labor, or the labor of some one from whom he has, mediately or immediately, derived it, by gift, purchase, or inheritance.

The doctrine of the objection, therefore, by denying that any right of property can originate in labor or production, virtually denies all rights of property whatsoever, not merely in ideas, but in all material things, exterior to one’s body; because if no rights of property in such things can be derived from labor or production, there can be no rights of property in them at all.

The ground, on which a man is entitled to the products and acquisitions of his labor, is, that otherwise he would lose the benefit of his own labor. He is therefore entitled to hold these products and acquisitions, in order to hold the labor, or the benefit of the labor, he has expended in producing and acquiring them.

The right of property, therefore, originates in the natural right of every man to the benefit of his own labor. If this principle be a sound one, it necessarily follows that every man has a natural right to all the productions and acquisitions of his own labor, be they intellectual or material. If the principle be not a sound one, then it follows, necessarily, that there are no rights of property at all in the productions or acquisitions of human labor.

The principle of the objection, therefore, goes fully and plainly to the destruction of all rights of property whatsoever, in the productions or acquisitions of human labor.

The right of property, then, being destroyed, what principle does the objection offer, as a substitute, by which to regulate the conduct of men, in their possession and use of all those commodities, which are now subjects of property? It substitutes only this, viz.: that men must not come in collision with each other, in the actual possession and use of things.

Now, since this actual possession and use of things, can be [78] exercised, only by men’s bringing their bodies in immediate contact with the things to be possessed or used, it follows that the principle laid down, of men’s avoiding collision in the possession and use of things, amounts to but this, viz.: that men’s bodies are sacred, and must not be jostled; but nothing else is sacred. In other words, men own their bodies; but they own nothing else. Every thing else belongs, of right, as much to one person as to another. And the only way, in which one man can possess or use any thing, in preference to other men, is by keeping his hands constantly upon it, or otherwise interposing his body between it and other men. These are the only grounds, on which he can hold any thing. If he take his hands off a commodity, and also withdraw his body from it, so as to interpose no obstacle to the commodity’s being taken possession of by others, they have a right to take possession of it, and hold it against him, by the same process, by which he had before held it against them. This is the legitimate and necessary result of the doctrine of the objection.

On this principle a man has a right to take possession of, and freely use, any thing and every thing he sees and desires, which other men may have produced by their labor—provided he can do it without coming in collision with, or committing any violence upon, the persons of other men.

This is the principle, and the only principle, which the objection offers, as a rule for the government of the conduct of mankind towards each other, in the possession and use of material commodities. And it seriously does offer this principle, as a substitute for the right of individual and exclusive property, in the products and acquisitions of individual labor. The principle, thus offered, is really communism, and nothing else.

If this principle be a sound one, in regard to material commodities, it is undoubtedly equally sound in relation to ideas. But if it be preposterous and monstrous, in reference to material commodities, it is equally preposterous and monstrous in relation to ideas; for, if applied to ideas, it as effectually denies the right [79] of exclusive property in the products of one’s labor, as it would if applied to material commodities.

It is plain that the principle of the objection would apply, just as strongly, against any right of exclusive property in corporeal commodities, as it does against a right of exclusive property in ideas; because, 1st, many corporeal commodities, as roads, canals, railroad cars, bathing places, churches, theatres, &c., can be used by many persons at once, without collision with each other; and, 2d, all those commodities—as axes and hammers, for example—which can be used only by one person at a time without collision, may nevertheless be used by different persons at different times without collision. Now, if it be a true principle, that labor and production give no exclusive right of property, and that every commodity, by whomsoever produced, should, without the consent of the producer, be made to serve as many persons as it can, without bringing them in collision with each other, that principle as clearly requires that a hammer should be free to different persons at different times, and that a road, or canal should be free to as many persons at once, as can use it without collision, as it does that an idea should be free to as many persons at once as choose to use it.

On the other hand, if it be acknowledged that a man have an exclusive right of property in the products of his labor, because they are the products of his labor, it clearly makes no difference to this right, whether the commodity he has produced be, in its nature, capable of being possessed and used by a thousand persons at once, or only by one at a time. That is a wholly immaterial matter, so far as his right of property is concerned; because his right of property is derived from his labor in producing the commodity; and not from the nature of the commodity when produced. If there could be any difference in the two cases, his right would be stronger, in the case of a commodity, that could be used by a thousand persons at once, than in the case of a commodity, that could be used only by one person at a time; because a man is entitled to be rewarded for his labor, according to the [80] intrinsic value of its products; and, other things being equal, a commodity, that can be used by many persons at once, is intrinsically more valuable, than a commodity, that can be used only by one person at a time.

Again. The principle of the objection is, that all things should be free to all men, so far as they can be, without men’s coming in collision with each other, in the actual possession and use of them; and, consequently, that no one person can have any rightful control over a thing, any longer than he retains it in his actual possession; that he has no right to forbid others to possess and use it, whenever they can do so without personal collision with himself; and that he has no right to demand any equivalent for such possession and use of it by others. From these propositions it would seem to follow further, that for a man to withhold the possession or use of a thing from others, for the purpose of inducing them, or making it necessary for them, to buy it, or rent it, and pay him an equivalent, is an infringement upon their rights.

The principle of property is directly the reverse of this. The principle of property is, that the owner of a thing has absolute dominion over it, whether he have it in actual possession or not, and whether he himself wish to use it or not; that no one has a right to take possession of it, or use it, without his consent; and that he has a perfect right to withhold both the possession and use of it from others, from no other motive than to induce them, or make it necessary for them, to buy it, or rent it, and pay him an equivalent for it, or for its use.

Now it is plain that the question, whether a thing be susceptible of being used by one only, or by more persons, at once, without collision, has nothing to do with the principle of property; nor with the owner’s right of dominion over it; nor with his right to forbid others to take possession of it, or use it. If he have a right to forbid one man to take possession of, or use, a certain commodity, he has the same right to forbid a thousand, or the whole world. And if he have a right to forbid a man to take [81] possession of, or use, a commodity, that is susceptible of being possessed and used by one person only at a time, he has the same right to forbid him to take possession of, or use, a commodity, that is susceptible of being possessed and used by a hundred, or a thousand, persons at once. The fact that men would, or would not, come in collision with each other, in their attempts to possess and use a commodity, if he were to surrender his dominion over it, and leave all equally free to possess and use it, is clearly a matter which does not at all concern his present right of dominion over it; nor in any way affect his present right to forbid any and all of them to possess or use it.

It is, therefore, wholly impossible that the circumstance, that one commodity—as a hammer, for example—is in its nature susceptible of being possessed and used by but one person at a time without collision, and that another commodity—as a road, a canal, a railroad car, a ship, a bathing place, a church, a theatre, or an idea—is susceptible of being possessed (i. e. occupied), and used by many persons at once without collision, can affect a man’s right to have complete dominion over the fruits of his labor. A man’s exclusive right of property in—or, in other words, his right of absolute dominion over—any one of these various commodities, depends entirely upon the fact, that such commodity was either a product or acquisition of his own labor, (or of the labor of some one, from whom, either mediately, or immediately, he has derived it, by purchase, gift, or inheritance;) and not at all upon the fact, that such commodity can, or cannot, be possessed and used by more than one person at a time, without collision.

The right of property, or dominion, does not depend, as the objection supposes, upon either the political or moral necessity of men’s avoiding collision with each other, in the possession and use of commodities; for if it did, it would be lawful, as has already been shown, for men to seize and use all manner of corporeal commodities, whenever it could be done without coming in personal collision with the persons of other men. But the right [82] of property, or dominion, depends upon the necessity and right of each man’s providing for his own subsistence and happiness; and upon the consequent necessity and right of every man’s exercising exclusive and absolute dominion over the fruits of his labor.

Now, this right of exercising exclusive and absolute dominion over the fruits of one’s labor, is not, as the objection assumes, a mere right of possessing and using them, in peace, and without collision with other men: but it includes also the right of making them subservient to his happiness in every other possible way, (not inconsistent with the equal right of other men, to a like dominion over whatever is theirs,) as well as by possessing and using them.

Now a man may make a commodity subservient to his welfare, in a variety of ways, other than that of himself possessing and using it—provided always his absolute dominion over it be first established. For example, if his absolute dominion over it be first established, so that he can forbid other men to use it, except with his consent, he can then sell it, or rent it, to those who wish to use it, and thus obtain from them, in exchange, other commodities which he desires; or he can confer it, or its use, as a favor, upon some one whose happiness he wishes to promote. But unless he be first secured in his absolute dominion over it, so as to be able to forbid other men using it, except with his consent, he is deprived of all power to make it subservient to his happiness, by selling it, or renting it, in exchange for other commodities; because, if other men can use it without his consent, they will have no motive to buy it, or rent it, paying him any thing valuable in exchange. He cannot even give it, as a favor, to any one, because it is no favor, on his part to give to another a commodity, which that other already has without his consent.

The right of property, therefore, is a right of absolute dominion over a commodity, whether the owner wish to retain it in his own actual possession and use, or not. It is a right to forbid others to use it, without his consent. If it were not so, men could never sell, rent, or give away those commodities, which [83] they do not themselves wish to keep or use; but would lose their right of property in them—that is, their right of dominion over them—the moment they suspended their personal possession and use of them.

It is because a man has this right of absolute dominion over the fruits of his labor, and can forbid other men to use them without his consent, whether he himself retain his actual possession and use of them or not, that nearly all men are engaged in the production of commodities, which they themselves have no use for, and cannot retain any actual possession of, and which they produce solely for purposes of sale, or rent. In fact, there is no article of corporeal property whatever, exterior to one’s person, which owners are in the habit of keeping in such actual and constant possession or use, as would be necessary in order to secure it to themselves, if the right of property, originally derived from labor, did not remain in the absence of possession.

But further. The question, whether a particular commodity can be used by two or more persons at once, without collision with each other, is obviously wholly immaterial to that right of absolute dominion, which the producer of the commodity has over it by virtue of his having produced it; and to his consequent right to forbid any and all other men to use it, without his consent.

A man’s right of property in the fruits of his labor, is an absolute right of controlling them—so far as the nature of things will admit of it—so as to make them subservient to his welfare in every possible way that he can do it, without obstructing other men in the equally free and absolute control of every thing that is theirs. Now, the nature of things offers no more obstacles, to a man’s exclusive proprietorship and control of a commodity, which is, in its nature, capable of being possessed and used by many at once without collision, than it does to his exclusive proprietorship and control of a commodity, which is, in its nature, incapable of being possessed and used by more than one at a time without collision. His right of property, therefore, is [84] just as good, in the case of one commodity, as in the case of the other.

The absurdity of any other doctrine than this is so nearly apparent, as hardly to deserve to be seriously reasoned against. One man produces a commodity—a hammer, for example—which can be used but by one person at a time without collision; and this commodity is his exclusively, because he produced it by his labor. Another man produces another commodity—as a road, a canal, or an idea, for example—which can be used by thousands at once without collision; and this commodity, forsooth, is not his exclusively, although he produced it solely by his own labor! Of what possible consequence is this difference, in the nature of the two commodities, that it should affect the producer’s exclusive right of property in either one or the other? Manifestly it is not of the least conceivable importance.

As a matter of abstract natural justice, there is no difference whatever, in a man’s demanding and receiving pay for a commodity, or the use of a commodity, which can be used by thousands at once without collision, and his demanding and receiving pay for a commodity, or the use of a commodity, which can be used by but one person a time. In the first case, he as much gives an equivalent for what he receives, as he does in the latter; an equivalent too, that is as purely a product of labor, as is the commodity he receives in exchange.

As a matter of abstract natural justice too, a man is as much entitled to be paid for his labor in producing commodities, that can be used by many persons at once without collision, as he is to be paid for producing commodities, that can be used by but one person at a time. For example, one man produces an idea, which is worth, for use, a dollar to each one of a thousand different men. Another man produces a thousand axes, worth a dollar each for the use of a thousand different men. Is there any difference in the intrinsic merit or value of the labor of these two producers? Or is there any difference, in their abstract right to demand pay of those who use the products of their labor? Is [85] not the producer of the idea as honestly entitled to demand a thousand dollars for the use of his single idea, as the other is to demand a thousand dollars for his thousand axes? The producer of the idea supplies a thousand different men with as valuable a tool to work with, as does the producer of the axes. Why, then, is he not entitled to demand the same price for his ideas, as the other does for his axes? Does the fact that, in the one case, a thousand different men use the same commodity, (the idea,) and that, in the other, a thousand different men use a thousand different commodities, (axes,) all of one kind, make the least difference in the merits of the respective producers? Other things being equal, is not one single commodity, that can be used by a thousand men at once without collision, just as valuable, for all practical purposes, as a thousand other commodities, that can each be used only by one person at a time? Are not a thousand men as effectually supplied with the commodity they want, in the first case, as in the latter? Certainly they are. Why, then, should they not pay as much for it? And why should not the producer receive as much in the first case, as in the last? No reason whatever, in equity, can be assigned.

If there be no difference in the justice of these two cases, is there any way, in which the producer of the idea can get his thousand dollars for it, other than that, by which the producer of the axes gets his thousand dollars for them, to wit, by first securing to him his absolute dominion over it, or absolute property in it, and thus enabling him to forbid others to use it except on the condition of their paying him his price for it? If there be no other way, by which he can get pay for his idea, then he is as well entitled to an absolute property in it, and dominion over it, as the producer of the axes is entitled to an absolute property in, or dominion over, them.

Still further. A thousand separate individuals, can as well afford to pay a thousand dollars, (one dollar each,) for the use of a single commodity, that can be used by them all at once without collision, as they can to pay a thousand dollars, (one [86] dollar each,) for the use of a thousand different commodities, each of which can be used only by one person at a time. A man can just as well afford to pay a dollar for an idea, that is worth a dollar to him, for use, though it be used also by others, as he can to pay a dollar for an axe, that is worth but a dollar to him for use, though it be not used by others. Its being used by others, or not, makes no difference at all in his capacity to pay for whatever value it is really of to himself.

A thousand different men can also as well afford to pay a dollar each, for the use of a commodity, which they can all use at once without collision, as they can to pay a dollar each for the use of a single commodity, which can be used only by one person at a time, and which can therefore be used by them all, only by their using it singly, successively, and at different times. For example. A thousand men can as well afford to pay a thousand dollars, (one dollar each,) for the use of a vessel, which will carry them all at once, as they can to pay a thousand dollars, (one dollar each,) for the use of a boat so small as to carry but one person at a time, and which must therefore make a thousand different trips to carry them all. How absurd it would be to say that the owner of the large boat had no right to charge a dollar each for his thousand passengers, merely because his vessel was so large that it could carry them all at once, without collision with each other, or with himself; and yet that the owner of the small boat had a right to charge a dollar each, to a thousand successive passengers, merely because his boat was so small that it could carry but one at a time.

The same principle clearly applies to an idea. Because it can be used by thousands and millions at a time, without collision, it is none the less the exclusive-property of the producer; and he has none the less right to charge pay for the use of it, than if it could be used by but one person at a time.

There is, therefore, no ground whatever, of justice or reason, on which the producer of the idea can be denied the right to demand pay for it, according to its market value, any more than [87] the producer of any other commodity can be denied the right to demand pay for it, according to its market value. And the market value of every commodity is that price, which men will pay for it, rather than not have it, when it is forbidden to them by one who has an absolute property in it, and dominion over it.

The objection, now under consideration, is based solely upon the absurd idea, that the producer of a commodity has no right of property in it, nor of dominion over it, beyond the simple right of using it himself without molestation; that he has therefore no right to forbid others to use it, whenever they can get possession of and use it, without collision with himself; that he must depend solely upon his own use of it to get compensated for his labor in producing it; that he can never be entitled to demand or receive any compensation whatever from others, for the use of it, or for his labor in producing it, however much they may use it, or enrich themselves by so doing; and that he therefore has no right to withhold its use from others, with any view to induce or compel them to buy it, or rent it, or make him any compensation for the labor it cost him to produce it. In short, the principle of the objection is, that when a man has produced a commodity by his own sole labor, he has no right of dominion over it whatever, except the naked right to use it; and that all other men have a perfect right to use it, without his consent, and without rendering him any compensation, whenever he is not using it, or whenever the nature of the thing is such as to enable both-him and them to use it at the same time, without collision.

The objection clearly goes to this extent, because the whole principle of it consists in this single idea, viz.: that men must avoid collision with each other in the possession and use of commodities.

This principle would not allow the producer so much even as a preference over other men, in the possession and use of a commodity, unless he preserved his first actual possession unbroken. To illustrate. If, when he was not using it, he should let go his [88] hold of it, and thus suffer another to get possession of it, he could not reclaim it, even when he should want it for actual use. To allow him thus to demand it of another, for actual use, on the ground that he was the producer of it, would be acknowledging that labor and production did give him at least some rights to it over other men. And if it be once conceded, that labor and production do give him any rights to it, over other men, then it must be conceded, that they give him all rights to it, over other men; for if he have any rights to it, over other men, then no limit can be fixed to his rights, and they are of necessity absolute. And these absolute rights to it, as against all other men, are what constitute the right of exclusive property and dominion. So that there is no middle ground between the principle, that labor and production give the producer no rights at all, over other men, in the commodity he produces; and the principle, that they give him absolute rights over all other men, to wit, the right of exclusive property or dominion. There is, therefore, no middle ground between absolute communism, on the one hand, which holds that a man has a right to lay his hands on any thing, which has no other man’s hands upon it, no matter who may have been the producer; and the principle of individual property, on the other hand, which says that each man has an absolute dominion, as against all other men, over the products and acquisitions of his own labor, whether he retain them in his actual possession, or not.

Finally. The objection we have now been considering, seems to have had its origin in some loose notion or other, that the works of man should be, like certain works of nature—as the ocean, the atmosphere, and the light, for example—free to be used by all, so far as they can be used by all without collision.

There is no analogy between the two cases. The ocean, the atmosphere, and the light, so far as they are free to all mankind, are free simply because the author of nature, their maker and owner, is not, like man, dependent upon the products of his labor for his subsistence and happiness; he therefore offers them freely to all mankind; neither asking nor needing any compensation for [89] the use of them, nor for his labor in creating them. But if the ocean, the atmosphere, and the light had been the productions of men—of beings dependent upon their labor for the means of subsistence and happiness—the producers would have had absolute dominion over them, to make them subservient to their happiness; and would have had a right to forbid other men either to use them at all, or use them only on the condition of paying for the use of them. And it would have been no answer to this argument, to say, that mankind at large could use these commodities, without coming in collision with the owners; that there were enough for all; and that therefore they should be free to all. The answer to such an argument would be, that those, who had created these commodities, had the natural right to supreme dominion over them, as products of their labor; that they had a right to make them subservient to their own happiness in every possible way, not inconsistent with the equal right of other men, to a like dominion over whatever was theirs; that they could get no adequate compensation for their labor in creating them, unless they could control them, forbid other men to use them, and thus induce, or make it necessary for, other men to pay for the use of them; that they had created them principally, if not solely, for the purpose of selling or renting them to others, and not merely for their own use; and that to allow others to use them freely, and against the will of the owners, on the simple condition of avoiding personal collision with them, would be virtually robbing the owners of their property, and depriving them of the benefits of their labor, and of their right to get paid for it, by demanding pay of all who used its products for their own benefit. This would have been the legal answer; and it would have been all-sufficient to justify the owners of these commodities, in forbidding other men to use them, except with their consent, and on paying such toll or rent as they saw fit to demand.

The principle is the same in the case of an idea. An idea, produced by one man, is enough for the use of all mankind (for the purposes for which it is to be used). It is as sufficient for [90] the actual use of all mankind, as for the actual use of the producer. It may be used by all mankind at once, without collision with each other. But all that is no argument against the right of the producer to absolute dominion over an idea, which he has produced by his own labor; nor, consequently, is it any argument against his right to forbid any and all other men to use that idea, except on the condition of first obtaining his consent, by paying him such price for the use of it as he demands.

But for this principle, the builders of roads and canals, which may be passed over by thousands of persons at once, without collision, could maintain no control over them, nor get any pay for their labor in constructing them, otherwise than by simply passing over them themselves. Every other person would be free to pass over them, without the consent of the owners, and without paying any equivalent for the use of them, provided only they did not come in personal collision with the owners, or each other.

Do those, who say that an idea should be free to all who can use it, without collision with the producer, say that the builders of roads and canals have no rights of property in them, nor any right of dominion over them, except the simple right of themselves passing over them unmolested? That they have no right to forbid others to pass over them, without first purchasing their (the owners’) consent, by the payment of toll, or otherwise? No one, who acknowledges the right of property at all, will say this. Yet, to be consistent, he should say it.

But the analogy, which the objector would draw, between the works of nature and the works of man, in order to prove that the latter should be as free to all mankind as the former, is defective, not only in disregarding the essential difference between the works of man and the works of nature, to wit, that the former are produced by a being who labors for himself, and not for others; and who needs the fruits of his labor as a means of subsistence and happiness; while the latter are produced by a Being, who neither needs nor asks any compensation for his labor; but it is defective in still another particular, to wit, that it disregards [91] the fact, that the works of nature themselves are no longer free to all mankind, after they have once been taken possession of by an individual. It is not necessary that he should retain his actual possession of them, in order to retain his right of property in them, and his right of dominion over them; but it is sufficient that he has once taken possession of them. They are then forever his against all the world, unless he consent to part, not merely with his possession, but with his right of property, or dominion, also. They are his, on the principle, and for the reason, that otherwise he would lose the labor he had expended in taking possession of them. Even this labor, however slight it may be, in proportion to the value of the commodity, is sufficient to give him an absolute title to the commodity, against all the world. And he may then part with his possession of it at pleasure, without at all impairing his right of dominion over it.

If, then, a man’s labor, in simply taking possession of those works of nature, which no man had produced, and which were therefore free to all mankind, be sufficient to give him such an absolute dominion over them, against all the world; who can pretend that his labor, in actually creating commodities—as ideas, for example—which before had no existence, does not give him at least an equal, if not a superior, right to an absolute dominion over them?

SECTION XII.: Objection Twelfth.

It is said that a man, by giving his ideas to others, does not thereby part with them himself, nor lose the use of them, as in the case of material property; that he only adds to other men’s wealth, without diminishing his own; that his giving knowledge to other men is only lighting their candles by his, thereby giving them the benefit of light, without any loss of light to himself; and that therefore he should not be allowed any exclusive property in his ideas, nor any right to demand a price for that, which it is no loss to him to give to others.

Spoiler

It is said that a man, by giving his ideas to others, does not thereby part with them himself, nor lose the use of them, as in the case of material property; that he only adds to other men’s wealth, without diminishing his own; that his giving knowledge to other men is only lighting their candles by his, thereby giving [92] them the benefit of light, without any loss of light to himself; and that therefore he should not be allowed any exclusive property in his ideas, nor any right to demand a price for that, which it is no loss to him to give to others.

This objection is really the same as the next preceding one; and is only stated in a different form. The answers given to that objection, will apply with equal force to this.

The fallacy of both objections consist, primarily, in this—that they deny the fundamental principle, on which all rights of property are founded, namely, that labor and production give, to the laborer and producer, a right of exclusive property in, and of exclusive and absolute dominion over, the acquisitions and products of his labor.

The fallacy of both objections consists, secondarily, in this—that they deny to the laborer the right and power of obtaining any compensation for his labor, other than such as he may chance to obtain, from his own personal possession and use of the commodities, which he produces or acquires by his labor. They assert the right of all other men to use those commodities, without his consent, and without making him any compensation—provided only that they can do it without coming in personal collision with him. They thus deny that he has any right to forbid other men to use the commodities he has produced, or to demand pay of them for such use. They thus virtually deny his right to sell or rent the products of his labor, or to obtain in exchange for them such other commodities as he desires. They assert that, after a man has himself incurred the whole labor and expense of producing a commodity—a commodity that is capable of accommodating others, as well as himself; and that will be of as much, perhaps more, value, for use, to others, than to himself—he is bound to give them as free use of it, as he has himself, without requiring them to bear any part of the burden, or compensate him for any portion of the labor and expense, incurred by him in producing it. They thus virtually assert that labor, once performed, is no longer entitled to be rewarded, however [93] beneficial it may be to others than the laborer; that commodities, once produced, are no longer entitled to be paid for, by those who use them, (other than the producers,) however valuable they may really be to them; that a man, therefore, has no such right of property in, nor of control over, the products of his labor, as will enable him to forbid other men to use them, or to demand pay of other men, for them, or for the use of them; that all men, consequently, have a perfect right to seize, and appropriate to their own use, the products of each other’s labor, without the consent of the producers, and without making any compensation, provided only that they do it without coming in personal collision with the producers; that if a man have produced enough of any particular commodity, (as wheat, for example,) to supply the world, he can rightfully control only so much of it, as he needs for his own consumption, and can maintain his actual possession of; that he can withhold the surplus from no one, with a view to getting an equivalent for it; that every man’s surplus, of any particular commodity, is not his property, to be exchanged for the surplus commodities of other men, by voluntary contract, but is rightfully free to be seized, by any one, to the extent of his particular needs for his own consumption; consequently that the exchanges, which take place among men, of their respective surpluses of the different commodities they severally produce, all proceed upon false notions of men’s separate rights of property in the products of their separate labor, and upon a false denial of the right of all men to participate equally with each man in the products of his particular labor; that men have no right to produce any thing for sale, or rent, but only to consume; and that if any one man be so foolish as to produce more, of any specific commodity, than he himself can use—as for example, more food than he himself can eat, more clothes than he himself can wear, more houses than he himself can live in, more books than he himself can read, and so on to the end of the catalogue—such folly is his own, committed with his eyes open, and he has no right to complain if all such surpluses be taken from him, against [94] his will, and without compensation, by those who can consume them; that it is not the labor of producing commodities, but the will and power to consume them, that gives the right of property in, and dominion over, them; that the right of property, therefore, depends, not upon production, but upon men’s appetites, desires, wants, and capacities for consumption; and consequently that all men have equal rights to every thing they desire for consumption, whoever may have been its producer—provided only they can seize upon it without committing an actual trespass upon the body of such producer.

This is clearly the true meaning of the objections; because the same principle would apply as well to a surplus of food, clothing, or any other commodity, as to a surplus of ideas, or—what is the same thing—to the surplus capacity of a single idea, beyond the personal use of the producer—by which I mean the capacity of a single idea to be used by other persons simultaneously with the producer, without collision with him. The capacity of a single idea to supply a large number of persons at once without collision, is, in principle, precisely like the capacity of a large quantity of food to supply a large number of persons at once, without collision. In the case of the food, as in the case of the idea, there is more than one can use, and is enough for all; and that is the reason given, why the idea should not be monopolized by the producer, but be made free to all who can use it advantageously for themselves. If this argument be good, in the case of the idea, it is equally good in the case of the food; for there is more of that than the producer can consume, and therefore the surplus should be free to others. The argument is the same, in one case as in the other; and if it be good in one case, it is good also in the other.

The capacity of an idea to be used by many persons at once, is also the same, in principle, as the capacity of a road, a canal, a steamboat, a theatre, or a church, to be used by many persons at once. And the producer or proprietor of the idea, has as clear a right to demand pay from all who use his idea, simultaneously [95] with himself and with each other, as the producer or proprietor of a road, a canal, a steamboat, a theatre, or a church, has, to demand pay of all who use one of those commodities, simultaneously with himself and with each other. How absurd it would be to deny the right of the proprietors of these last named commodities, to demand pay of the thousand users of them, on the grounds that they all used them simultaneously! that there was room for all! that the users did not come in collision with each other! that the commodities were susceptible of being used by a thousand or more at a time! and that the use of them, by others, did not prevent the proprietors from using them also at the same time!

Is a passage on a steamboat of no value to a man, if there be other men on board? Is it not just as legitimate a subject for compensation, when he enjoys it simultaneously with others, as when he enjoys it alone? Are not the performances in a theatre, a church, or a concert room, just as legitimate subjects for compensation, by each person who enjoys them, though they be enjoyed simultaneously by a thousand others beside himself, as they would be if enjoyed by himself alone? Certainly they are. And on the same principle, the use of an idea, which may be used by the whole world at once, without collision with each other, is just as legitimate a subject for compensation to the producer, as though the idea were capable of being used by but one person at a time.

But further. Why is it claimed that a man is bound, in the case of an idea, any more than in any other case, to give a product of his labor to others, without requiring them either to compensate him for his labor in producing it, or pay him any equivalent for its value to them? He has produced, at his own cost, a commodity, which can be used by others, as well as by himself; and the use of which, by others, will bring as much wealth to them, as his own use of it will bring to himself. Why has he no right, in this case, as in all others, to say to other men, you shall not use, for your profit, a commodity produced by my labor, [96] unless you will pay me my price for it, or—what is the same thing—for my labor in producing it? Can any rational answer be given to such a question as that? What claim have they upon a product of his labor, that they should seize it without paying for it? Is it theirs? If so, by what right, when they did not produce it? and have never bought it? and the producer has never freely given it to them? Self-evidently it can be theirs by no right whatever.

On the principle of these objections, Fulton could get no compensation for his labor and expense, in inventing the steamengine, other than such as he might derive from actually operating one of his own engines, in competition with all other persons, who might choose also to operate them. If he did not choose himself to operate an engine for a living, the world would get the whole benefit of his invention for nothing, and he go wholly unrewarded for his labor in producing it. On the same principle, Morse could get no pay for the labor and expense incurred by him in inventing the telegraph, other than such as he could obtain by himself operating a telegraph, in competition with all other persons who should choose to do the like. If he did not choose to operate a telegraph for a living, or could not make a living by so doing, the world would get the whole benefit of his invention for nothing, and he go wholly unrewarded for his labor in producing it. On the same principle, a man, who should build, at his own cost, a road, or a canal, would have no right to forbid others to pass over it, nor to demand pay of them for passing over it; and could consequently get no pay for his labor in constructing it, other than such as he could obtain by simply passing over it himself. If he did not wish to pass over it, he would wholly lose his labor in constructing it; and the world would get the whole benefit of it for nothing. On the same principle too, if a man should build and run, at his own charge, a steamboat, large enough to carry a thousand passengers beside himself, he could neither forbid the thousand to come on board, nor demand pay of them for their passage. He could get no pay [97] for his outlay, in building and running the boat, otherwise than by simply taking a passage on board of it himself. If this should not be an adequate compensation, he would have to submit to the loss, while the other thousand passengers would enjoy a free passage, on his boat, at his cost, and without his consent, simply because the boat was large enough to carry him and them too, and because their passage on it did not prevent him from taking passage on it also, simultaneously with themselves!

But it is said that giving knowledge to a man, is simply lighting his candle by ours; whereby we give him the benefit of light, without any loss of light to ourselves. And because we are not in the habit of demanding pay, for so momentary a labor, or so trivial a service, as that of simply lighting a man’s candle, it is inferred that we have no right to demand pay of a man, for our intellectual light, to be used as an instrumentality in labor, though it be such, that he will derive great pecuniary profit from it.

Admitting, for the sake of the argument, that the cases are analogous, the illustration wholly fails to prove what is designed to be proved by it; because, legally speaking, we have as perfect a right to the absolute control of our candles, as of any other property whatever, and as perfect a right to refuse to light another man’s candle, as to refuse to feed or clothe his body. We have also as perfect a right to forbid him to light his candle by ours, or in any way to use our light, as we have to forbid him to use our horse, or our house. And the only reason we do not, in practice, demand a price for lighting a man’s candle, is, that the lighting of a single candle is so slight a labor, and is so easily done by any body, and every body, that it will command no price in the market; since every man would sooner light his own candle, than pay even the smallest sum to another for doing it. But whenever the number of candles to be lighted is so large, as to enable the service to command a price in the market, men as habitually demand pay for lighting candles, as for any other service of the same market value. For example, those who light [98] the lamps, in the streets of cities, in churches, theatres, and other large buildings, as uniformly demand pay for so doing, as for any other service done by one man for another. And no lawyer was ever yet astute enough to discover that such lamplighters were entitled to no pay, either for the reason that they parted with none of their own light, or for the reason that they enjoyed, in common with others, the light given forth by the candles they lighted.

We do not now demand pay for lighting a single candle, simply because the service is too trivial to command a price worth demanding. But if the production of a light, in the first instance, were—like the invention of a valuable idea—a work of great labor and difficulty, such as few persons could accomplish, and those few only by a great expenditure of money, time, and study, the producers of a light would then demand pay for lighting even a single candle by it, the same as they now do for the use of an idea by a single individual. And it would be no argument against their right to do so, to say, that they part with no light themselves; that they have as much light left as they had before, or as they can use in their own business, &c., &c. The answer would be, that the light was the product of their labor, and as such was rightfully their exclusive property, and subject to their exclusive control; that therefore no one had a right to use it without their consent; that they had as good right to produce a light, with a view to sell it to others, or to light other men’s candles by it for pay, as to produce it for their own use in labor; that if they were to give the benefits of their light to others gratuitously, or if others could avail themselves of it, without making compensation, the producers would get no adequate compensation for the labor of producing it; that the light was valuable to others, as well as to the producers, and therefore others, if they wished to use the light, could afford, and should be required, to bear a part of the cost of producing it; and that if they refused to bear any part of the cost of the light, they ought not to participate in the benefits of it.

[99]

But the case of lighting another man’s candle by ours, is not strictly analogous to the case of our furnishing him a valuable idea, for his permanent use and profit. There is indeed a sort of analogy, between giving a man light for his eyes, and light for his mind; especially if he use both kinds of light in his labor. But the important difference between lighting a candle, and furnishing an idea, is this. When we simply light a man’s candle for him, we do not supply him, at our own cost, with a permanent light for use. We only ignite certain combustible materials of his own; and from them alone he derives the permanent light, which he uses in labor. It is therefore only from the combustion of his own property, that he obtains that permanent light, which alone will suffice for his uses. All the service, therefore, which we render him, is the exceedingly trivial one of simply igniting those materials by a momentary contact with our flame. We supply none of the materials themselves, from the combustion of which his permanent and useful light is derived. But in the case of the idea, we do furnish him with the permanent light itself, by the aid of which alone he performs his labor. We do not, as in the other case, simply ignite his combustible materials. We furnish the permanent light, and the whole light, at our own sole cost.

Now the simple ignition of his combustible materials, as in the case of the candle, is too trivial a service to be worth demanding pay for it; and too trivial also to command a price, if it were demanded. But the furnishing him a perpetual light, as in the case of the idea, is a service sufficiently important to be worth demanding a price for it; and also sufficiently important to command a price in the market. And this is the difference, or at least one of the differences, between the two cases.

To make the case of the material light analogous to that of the intellectual light, it would be necessary that we produce, at our own cost, a permanent material light, such as will be of practical utility in labor. Having done this, a stranger, who had no share in the production of the light, claims the right to come into our [100] light, and to use it for the purposes of his labor, without our consent, against our will, and without making us any compensation. We deny his right to do so; we tell him the light is our property, the product of our labor; that, as such, we have a right to control it, and its use; that we produced it with a view to sell so much of it as we did not wish to use; and that we will permit him to use it only on his paying us such a price as we see fit to demand. But he replies, that within the sphere of our light, there is room, which we do not occupy, and where the light goes to waste; that his occupying this vacant space, and using this waste light, will not interfere with the light we are using; that the light will be just as strong, where we are at work, as it was before; that he denies our right to demand pay for the use of our surplus light; and that therefore he will use it, and pay us nothing for it.

Which party here has the law on his side, the producers of the light, or the intruder? Certainly there can be no doubt that the light is the property of the producers, and that no one can claim the right to use it, for the purposes of his labor, without their consent. And the principle is the same in the case of the intellectual light.

To make the analogy still closer, between the cases of the material and the intellectual light, and especially to make the wrong of the intruder more palpable, we must suppose that we have produced a peculiar material light; and that this peculiar light is indispensable for the manufacture of a peculiar commodity, that is of value in the market. We, being the sole producers and possessors of this peculiar light, enjoy a monopoly of the manufacture and sale of the peculiar commodities manufactured by the aid of it. The intruder now claims the right, with out our consent, to come into our light, and use it for the manufacture of the same kind of commodities, which we are manufacturing, and which can be manufactured only by our light; and then to offer those commodities in the market in competition with ours. He thus claims, not only to use our light, against our [101] will, and without making us any compensation, but also to use it for a purpose which is prejudicial to us, by reducing the market value of the commodities, which we ourselves manufacture by it. He thus does us a double wrong; for he not only uses, without our consent, and without making us any compensation, the light which we alone have produced; but he also reduces the practical value of the light to us, for our own uses, by selling, in competition with ours, the commodities he manufactures by its aid.

Is there no injustice, no intrusion, no usurpation, in such conduct as this? Most clearly there is. If, I being an innholder, a stranger were to come into my house, seize upon my stores of provisions, cook them by my fire, and then sell them to my customers, in competition with those which I have provided for them, the intrusion, usurpation, injustice, and robbery would be no more flagrant than in the case supposed. Yet neither of these cases is any more than a parallel to that of a man, who, without my consent, uses my invention, my intellectual light, and manufactures commodities by it, which he otherwise could not manufacture, and then sells them in competition with mine.

Finally. If the doctrine be true, that a man should have no pay for imparting knowledge to others, because he retains the same knowledge himself, then a lawyer should have no pay for the knowledge he imparts to his client, to a jury, or to a judge; a physician should have no pay for the knowledge he imparts to his patient, or to his patient’s nurse; a preacher should have no pay for the knowledge he imparts to his congregation; a lecturer should have no pay for the knowledge he imparts to his audience; a teacher should have no pay for the knowledge he imparts to his scholars; a master should have no pay for the knowledge he imparts to his apprentice; a legislator should have no pay for the knowledge he imparts to his fellow legislators, or to the country, by his speeches; a judge should have no pay for the knowledge he imparts by his judicial opinions or decisions; authors and editors should have no pay for the knowledge they impart by their writings; and so on indefinitely.

[102]

By the same principle too, a musician should charge nothing for his music, because he loses none of it himself. He hears it all, and enjoys it all, the same as if no one else were hearing it, or enjoying it. A painter should have no pay for a view of his picture, because he does not thereby lose the view of it himself. A sculptor should have no pay for exhibiting a statue, because he does not thereby lose the sight of it himself. A soldier should have no pay for achieving the liberties of his country, because he enjoys all those liberties himself, and none the less because his fellow countrymen, who stayed at home while he was fighting, enjoy them too. Such are some of the absurdities to which the doctrine leads.

The argument on this point might be extended still farther. But I apprehend it has already been extended farther than was really necessary. The objections have no soundness in them; yet they have probably as much plausibility as any of the objections that were ever brought against one’s right of property in his ideas. And this is the reason I have felt it excusable to expend so many words upon them.

SECTION XIII.: Objection Thirteenth.

It is said that society have rights in ideas, that have been once made known to them; that a perpetual monopoly in the producer, destroys the rights of society; and that society have a right to perpetuate ideas once made known.

Spoiler

Hence it is inferred that society have a right to confiscate ideas, and make them free to all, in order to prevent the producer’s withholding them from the public, and thus causing them to perish unused.

The primary assumption here is, “that society have rights in [103] ideas once made known to them.” From this assumption, the other assumptions and the inference naturally follow. They depend solely upon it, and are nothing without it. If, then, the first assumption be baseless, the others and the inference are equally so.

What rights society have, in ideas, which they did not produce, and have never purchased, it would probably be very difficult to define; and equally difficult to explain how society became possessed of those rights. It certainly requires something more than assertion, to prove that by simply coming to a knowledge of certain ideas—the products of individual labor—society acquires any valid title to them, or, consequently, any rights in them.

There would clearly be just as much reason in saying that society have rights in material commodities—the products of individual labor—because their existence had become known to the public, as there is in saying that they have rights in ideas—the products of individual labor—simply because their existence had become known to the public. There would, for example, be just as much reason in saying, that society have rights in a thousand, or a hundred thousand, bushels of wheat—the product of individual labor—on the ground that the existence of this wheat had become known to them, as there is in saying that they have rights in a mechanical invention—the product of individual labor—on the ground that its existence has become known to them. And there would be just as much reason in saying, that society have a right to confiscate this wheat, and distribute it gratuitously among the people, in order to prevent the producer’s withholding it from market, and suffering it to rot, as there is in saying that society have a right to confiscate a mechanical invention, and make it free to the public, in order to prevent the inventor’s withholding it from market, and suffering it to be lost.

If, however, this doctrine be true, in favor of society, it must be equally true in favor of single individuals; for society is only a number of individuals, who have no rights except as individuals. [104] The consequence of the doctrine, therefore, would be, that every private individual would have rights in every commodity, the existence of which should come to his knowledge! He would also, of course, have the right, (now claimed for society,) of preserving such commodities from loss and decay. And this right would involve the still further right, (now claimed for society,) of taking such commodities out of the hands of the producers, and appropriating them to his own use, in order to prevent the producer’s withholding them from him, and suffering them to perish unused by him! This is the legitimate result of the principle contended for.

This doctrine, that society have rights in all commodities, in consequence of the commodities becoming known to them; and that they have a right to confiscate them, and apply them to the public use, in order to prevent the producer’s withholding them from market, and suffering them to perish unused, would certainly afford a very convenient and efficacious mode of destroying all private property, and throwing every thing into common stock. But what other purpose it could serve, it is not easy to see. If the doctrine be a sound one, in regard to material commodities, it is undoubtedly sound also in regard to intellectual commodities. But if it be the height of absurdity and tyranny, in regard to material commodities, it is equally absurd and tyrannical in regard to ideas.

The doctrine is also as unsound in policy, as it is in law; since it would cause a thousand commodities to perish unused, or prevent their ever being produced, as often as it would save one from thus perishing. If a man be allowed an absolute property in the products of his labor, and can forbid others to use them, except with his consent, he then has a motive to preserve them, and bring them to market; because, if they are valuable, they will command a price. Hence he will suffer few or none of them to be lost. But if the products of his labor are to be confiscated, he is, in the first place, dissuaded from producing nearly as many as he otherwise would; and, secondly, such as he does produce, [105] he will keep concealed as far as possible, in order to save them from confiscation; and the consequence will be that very many of them will perish unused.

He also addresses the property right to the air we breath in part one.

The air, that a man inhales, is his, while it is inhaled. When he has exhaled it, it is no longer his. The air that he may inclose in a bottle, or in his dwelling, is his, while it is so inclosed. When he has discharged it, it is no longer his. The sun-light, that falls upon a man, or upon his land, or that comes [18] into his dwelling, is his; and no other man has a right to forbid his enjoyment of it, or compel him to pay for it.

I don't think this does justice to it as a stand alone citation.

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He also speaks of ideas shared gratuitously, which I think can apply to advertising, however I chose the air example as a better representation of ideas in the form of property.  The ideas in your head, like the air in your lungs, isn't mine by any stretch of the imagination.  We can agree that both are properly yours so long as they remain contained (concealed) in your possession.  Likewise you might bottle air or write your idea down and slip it into a bottle, and both remain yours to use as you please;  they are not mine to take from you.

However, once you exhale your air or ideas in my direction, they leave your possession by your own action and become free to ignore or use at my discretion.  I may appreciate what you have placed within my reach and choose to trade with you, but I am certainly under no obligation to pay you for it ahead of any agreement, or to return it to you unused.  It would be like any other merchant offering a free sample and then holding me accountable whether or not I accept having it.  An honest trader doesn't create a unilateral contract and force it on everyone regardless of whether or not they agree to sign.

Another way to look at it is, if I find a dollar on the sidewalk, I'm under no obligation to find the owner of misplaced property.  Even if it has your name on it, it is your responsibility, not mine, to keep it secure as your possession.  Shall I follow you around returning whatever you cast off just because you aren't responsible enough to look after your own possessions?  I may choose to return it to you or spend it at my discretion, and either action is more moral than your expectation to have everyone look out for your best interests.

I find Spooner's ideas very interesting and credible to the point where ideas, as property, cannot be forced away from their originator or fraudulently represented as ones own.  And let's not forget the innovator/investor already has a monopoly on being first to market by default.  Asking for additional security in the form of constraints on competition smacks of promoting protectionism.

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Unlike a mine, the segregation of a portion of nature, identified as property granted to an individual to extract the resource therein, a patented idea cannot as simply be fenced off  The "fencing" has to be done by voluntarily recognizing the property right to the idea as rigorously as a property right to a mine, albeit, much more difficult to gain a similar recognition by a jury.

I think Rand recognizes such an invisible fence, so to speak. What, over and above what Rand has written, it takes for others to also recognize them, is harder to articulate.

I'm glad to have been introduced to Spooner here. It too, helped to clarify the matter, to me.

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On 11/11/2015, 5:52:40, Robert Romero said:

BTW, in response to the objection that the steam engine is “just one example", I found these quotes from a research paper on patents:

I read the paper now, it is primarily an argument that patent systems like the US system make negative contributions to innovations. It describes problems that I already said should not exist, as in, the system doesn't follow rational principles. The problem is an overly-robust system. The only issue I see to IP is if it's possible to specify the borders of ideas and their implementation at a sensible level of granularity. Things like Amazon's One-Click have absurdly broad borders, yet are patented. Those sort of things deserve no patent protection.

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2 hours ago, Eiuol said:

I read the paper now, it is primarily an argument that patent systems like the US system make negative contributions to innovations. It describes problems that I already said should not exist, as in, the system doesn't follow rational principles. The problem is an overly-robust system. The only issue I see to IP is if it's possible to specify the borders of ideas and their implementation at a sensible level of granularity. Things like Amazon's One-Click have absurdly broad borders, yet are patented. Those sort of things deserve no patent protection.

It is not the breadth of an invention which invalidates it qua invention and consequently excludes it from property deserving protection, it is its non-inventiveness, either not being new or its being obvious.  Your "feeling" about Amazon's one-click is not that it is an incredible and deserving invention which also has very broad applicability... you have distaste for it (if I may be a little presumptuous) because you feel that it is "obvious": simple AND not much of an invention.

 

I raise this only because arguing against a patent grant solely because of the scope of the invention's application and not the validity of its claim as inventive intellectual property of an individual, is a strategy of collectivist mixed economy types trying to balance (read "figure how much to violate") individual rights in the name of some mystical public good (consumers want cheap gadgets).

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45 minutes ago, StrictlyLogical said:

I raise this only because arguing against a patent grant solely because of the scope of the invention's application and not the validity of its claim as inventive intellectual property of an individual, is a strategy of collectivist mixed economy types trying to balance (read "figure how much to violate") individual rights in the name of some mystical public good (consumers want cheap gadgets).

The way the patent is worded is such that it is absurdly broad, beyond what one-click actually is. I was not speaking of broad applicability. I was speaking of a broad definition in the patent. The principle I am focusing on is that property of all kinds demands a rational definition of its boundaries. In this way, the boundaries of property must be set by the law.

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Patents, unlike copyrights, are more difficult to objectively delineate. I've used the terminology of an "invisible fence" to hedge it in with thus far. Outside of an objectively constrained theory of patents, the "fence-lines" are often going to be emotionally charged borders. Rational definition of its boundaries will depend on an objective theory of concepts to guide any hypothetical juries on the identification of just where the corner stakes have been established.

Edited by dream_weaver
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8 hours ago, dream_weaver said:

Patents, unlike copyrights, are more difficult to objectively delineate. I've used the terminology of an "invisible fence" to hedge it in with thus far. Outside of an objectively constrained theory of patents, the "fence-lines" are often going to be emotionally charged borders. Rational definition of its boundaries will depend on an objective theory of concepts to guide any hypothetical juries on the identification of just where the corner stakes have been established.

This is a good comment.

It should be understood that as long as the fence is clearly defined and demarcated: (analogously to the exactness of defining a specific boundary for land, the claim of the patent is not invalid for indefiniteness).  A good claim has a thin definite precise fence, and it does not matter how much area it encloses nor how complex its boundary - the breadth of the claim is not an issue as long as it claims valid inventive territory.  An unclear "fence" if you will, one which defines borders which are fuzzy, unclear, i.e. has been defined so that one does not know really where it is, and hence what falls inside and what outside, this is a completely different matter from breadth.  An incredibly narrow invention (tiny land plot) can be defined by a bad claim and have an unclear boundary, but it would be vulnerable to invalidation by the courts.

 

Patent claims are not to difficult to craft (by patent attorneys) in such a way that they are objective and delineate a specific monopoly - albeit the broadest possible monopoly which is rightfully the property of the inventor.

 

When looking at a claim one needs to think of proper usage of concepts and like Rand's measurement omission, to simply see whether the particular concrete exhibits all the attributes or features in the nature and amount as defined in the claim, i.e. whether it falls within the definition, if so it infringes.  Of course because words are not perfect there can be a valid dispute.

 

This is the claim for Amazon's 1-click patent. 

1. A method of placing an order for an item comprising:

under control of a client system,
displaying information identifying the item; and
in response to only a single action being performed, sending a request to order the item along with an identifier of a purchaser of the item to a server system;
under control of a single-action ordering component of the server system,
receiving the request;
retrieving additional information previously stored for the purchaser identified by the identifier in the received request; and
generating an order to purchase the requested item for the purchaser identified by the identifier in the received request using the retrieved additional information; and
fulfilling the generated order to complete purchase of the item
whereby the item is ordered without using a shopping cart ordering model.
 

A skilled person in the art (an electrical engineer for example) of electronic/internet ordering systems would understand the above claim and could tell you if a particular system infringes or not.

 

To be sure there is a danger of conflating the issues of breadth with indefiniteness.

 

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2 hours ago, StrictlyLogical said:

This is a good comment.

Speaking from the point of view of someone who does not recognize IP as valid (i.e. rooted in reality), I find all of this kind of discussion to be akin to trying to decide how many angels can dance on the head of a pin.

But I do find it an interesting question (assuming that I'm wrong, and that there is any validity to IP), as to how to try to implement IP in an objective manner. While I think it absurd that any individual (or group) could "own" the 1-click ordering method you've described, I agree that the description seems clear enough to avoid accidental infringement (assuming knowledge of the patent), which is a good thing.

I wonder whether we would consider current copyright enforcement to be equally "objective?" For instance, recently there was the much publicized Blurred Lines case, where apparently it was found to be too similar to a Marvin Gaye song and the latter was awarded 7.4 mil accordingly. Do you think there's a way to approach copyright in as objective a manner as your demonstration of patent? How would we determine the "thin definite precise fence" that the creation of a song, say, entails?

By the way, SL, I do not recall whether we've ever discussed IP between us. If you've followed the thread, and you have some response to the substance of my critique (beyond what's already been offered by others), I would be happy to hear it. I desperately want to be on the right side of this issue; I fear that I already am.

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On 11/24/2015, 7:42:55, DonAthos said:

I found this in another thread. I thought it was a refreshingly direct way to probe a question (given the overall context of this board), and respectful. So with respect to this ongoing conversation on IP, I wanted to take a shot at answering it here. With IP, where is the point where I diverge with Rand?

I agree with Rand about individual rights and property rights, generally. I disagree, however, that "the mind" of an inventor creates that material wealth which is, in reality, created by other people and other minds. I thus disagree that the inventor has any claim on that material wealth.

In the familiar case of Men A & B and their respective Machines, I do not agree that Man A has "created the value" of Machine B, because in reality, it is Man B who has performed both the mental and physical labor necessary for Machine B to exist (as such) and be of use. Accordingly Man B ought to have the right to Machine B, disposing of his own efforts for the furtherance of his own life.

I would like to try to expand slightly on my central point of contention with Rand, so that others may comment/respond to what I believe to be the source of my disagreement. I would like to try to crystallize this further.

Material wealth, which is something that man requires to live (and, it should be understood, to flourish), must be created (qua wealth; even a cupful of water from the river must be "created" in the sense of being converted from distant "natural resource" into that which may be put to use). In the name of justice, property rightly belongs to the man who does the creating. The cupful of water belongs to the man who travels to the river and procures it.

Ayn Rand makes her position on this clear:

Quote

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.

Thus far, I believe that she and I are in complete agreement.

Man A who constructs Machine A owns it. Machine A requires the application of human knowledge and effort in order to become of value (qua Machine A). It ought to be, and is, private property, and it rightly belongs to Man A, who is the man who has applied the requisite knowledge and effort for Machine A's construction. Man A has created the value of Machine A, which is why we recognize his right to the disposal of that value (which is what it means to "own" it).

Once again, I believe that Ayn Rand and I are in lockstep with respect to this scenario.

Now, of course, to probe my position with respect to Rand's, we must introduce Man B. There are a lot of details in introducing Man B which may, or may not, prove relevant. But to begin, let us say that they are neighbors. Man A has built Machine A and, a week later, Man B observes Man A walking down the street utilizing Machine A (in whatever manner Machine A is to be utilized). From this, Man B gets the idea that his life, too, may be benefited by such a machine... and he sets to work to build one for himself.

The "work" involved in the "copying" of Machine B--let us be clear--is both mental and physical, as the creation of material wealth always is. In the end, Man B successfully produces Machine B, which is sufficiently similar to Machine A as to be regarded as a "copy" for our purposes. Now the question before us, and what I regard as the central question to the entirety of IP, is: between Man A and Man B, who has the right to dispose of the value of Machine B? Which is to say, who owns it? And, if we are to be consistent with our earlier understanding of property rights, that question amounts to asking: who has created the value of Machine B?

I believe that the arguments Ayn Rand sets out in her essay "Patents and Copyrights" argue that Man A has created the value of Machine B, and that he subsequently should have the rights to it; that therefore he rightly owns Machine B.

If I am right thus far in my assessment of her argument, I wholeheartedly disagree with her conclusion. Man A, in reality (which ought to be the source of our philosophy), has not created the value of Machine B. He has not created Machine B. He may not even be aware of the existence of Machine B. It was Man B who has created Machine B. It was Man B who applied the knowledge and effort required to bring Machine B into existence, qua material wealth. It was thus Man B who has created that value, and Man B who ought to have the right to its disposal.

That's the reality, contra Ayn Rand's argument (and contra anyone who agrees with the same). Rand's argument holds that it is the "mind" of Man A which has done the labor of creating the value of Machine B, saying:

Quote

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.

But it is not the case that the mind of Man A has "brought [Machine B] into existence." It is the labor, both mental and physical, of Man B which has brought Machine B into existence. These are the facts. Thus, for the law to establish a property right of Man A's mind to something which it has not, in fact, brought into existence (and simultaneously deprive Man B of the fruits of his actual labor) is an injustice.

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39 minutes ago, DonAthos said:

But it is not the case that the mind of Man A has "brought [Machine B] into existence." It is the labor, both mental and physical, of Man B which has brought Machine B into existence. These are the facts. Thus, for the law to establish a property right of Man A's mind to something which it has not, in fact, brought into existence (and simultaneously deprive Man B of the fruits of his actual labor) is an injustice.

Would you explain in more detail what the mental labor of Man B is?

Also, the quote says source of value. Bringing something into existence is still necessary. It isn't talking about all the details that aren't responsible for why it is able to be valued in the first place.

Edited by Eiuol
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5 hours ago, DonAthos said:

Ayn Rand makes her position on this clear:

Quote

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.

 

Does private property here apply only to the material element, or does it extend to the resource as well? Would her description of what constitutes a resource include this excerpt from The Ayn Rand Letter, Vol. 1, No. 26  September 25, 1972, How To Read (And Not To Write)?

Quote

Who is to permit the market to allocate resources? Whose resources? What are "socially desirable purposes"? Who desires them—and at whose expense? Since the greatest, the fundamental, factor ("resource") of production is human intelligence, is it to be disposed of by the "choices of the society"?

 

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4 hours ago, Eiuol said:

Would you explain in more detail what the mental labor of Man B is?

The specifics of the mental labor required to fashion Machine B would depend on both what Machine B is and who Man B is (different machines will have varying requirements, and different men will have varying capabilities). As we are dealing with a generic "Machine B," we can generally say that Man B must come to understand what Machine B is (including its purpose), how it operates, and how it may be constructed. Then he must assess such a thing's potential in the context of his own life, he must weigh his own ability to construct such a thing, and whether it would be valuable (including against other uses of his time and resources), and then he must manage himself such that he may construct it. And then, in the physical activity of construction of the machine itself, he must be mindful, lest he err/fail.

We may observe (again, generally speaking) that the mental labor involved in "copying" may not be small, and in some cases may even be greater (insofar as we can measure such a thing) than that of the innovator.

4 hours ago, Eiuol said:

Also, the quote says source of value. Bringing something into existence is still necessary. It isn't talking about all the details that aren't responsible for why it is able to be valued in the first place.

"The quote" says many things. One of the the things it asserts is that IP law "establishes the property right of a mind to that which it has brought into existence." Thus we might ask, with respect to this quote: did the mind of Man A bring Machine B into existence (qua value; in the manner of property)? Is it thus accorded that property right in justice?

My answer is: no, the mind of Man A did not bring Machine B into existence. The argument, therefore, is mistaken.

And remember, it is "bringing into existence" in the sense of material wealth which is the standard of assessing property right. Remember that in "the other quote" in the post to which you're responding, Rand says "by the right of those who apply the knowledge and effort." Those who apply. Man A may have innovated the knowledge, but with respect to Machine B, it is Man B who has applied the knowledge and effort.

Now, regarding "source of value," let's look again:

Quote

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...

"The object's value." Which object? Here: Machine B. So we're saying that "Man B's physical labor [of copying] is not the source of Machine B's value?" That may or may not be. What we can say is that Man B's mental and physical labor are what created Machine B--brought it into existence--qua material wealth. Without Man B's mental and physical labor, Machine B does not exist... and thus has no value. But given Man B's efforts, Machine B exists and has value. Thus I would say that it is Man B, and his efforts, which are the source of Machine B's value in every relevant sense.*

________________________

There are other senses in which we could refer to Man A, and his efforts, as being "the source of Machine B's value..." in that Man A and his work have inspired Man B. With similar justice, we could perhaps also say that it is Man A's mother who is "the source of Machine B's (and Machine A's) value," or that it is Man A's engineering teacher [or his mother]. Heck, we can trace this sense of "source" back quite some ways, I'd imagine. But none of this has anything to do with property. Or it oughtn't, at least.

3 minutes ago, dream_weaver said:

Does private property here apply only to the material element, or does it extend to the resource as well? Would her description of what constitutes a resource include this excerpt from The Ayn Rand Letter, Vol. 1, No. 26  September 25, 1972, How To Read (And Not To Write)?

My read is that "material" applies to both "element" and "resource," and that yes, both are to be considered subject to private property (because all material wealth requires the application of effort to be of value).

Insofar as ideas are "ownable" (in a very loose sense, and though I do not believe Rand was speaking to this at all), then there, too, any idea should be "owned" by whomever applies the requisite effort to make that idea of value, of itself, which means: whomever performs the labor of thinking required to come to the idea. Thus, you "own" the ideas that you have and I "own" mine. But again: this is not sensibly "property," which has to do with man's existence in a material world. But perhaps this quote (from Galt's speech) will help to elucidate the fundamental matter:

Quote

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.

 

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12 minutes ago, DonAthos said:

There are other senses in which we could refer to Man A, and his efforts, as being "the source of Machine B's value..." in that Man A and his work have inspired Man B. With similar justice, we could perhaps also say that it is Man A's mother who is "the source of Machine B's (and Machine A's) value," or that it is Man A's engineering teacher [or his mother]. Heck, we can trace this sense of "source" back quite some ways, I'd imagine. But none of this has anything to do with property. Or it oughtn't, at least.

My read is that "material" applies to both "element" and "resource," and that yes, both are to be considered subject to private property (because all material wealth requires the application of effort to be of value).

Insofar as ideas are "ownable" (in a very loose sense, and though I do not believe Rand was speaking to this at all), then there, too, any idea should be "owned" by whomever applies the requisite effort to make that idea of value, of itself, which means: whomever performs the labor of thinking required to come to the idea. Thus, you "own" the ideas that you have and I "own" mine. But again: this is not sensibly "property," which has to do with man's existence in a material world. But perhaps this quote (from Galt's speech) will help to elucidate the fundamental matter:

 

"An idea as such cannot be protected until it has been given a material form.", so as in the material form of a book, giving rise to copyright, the material form of an invention puts for the tangible form of the "idea" in either case, serving as the evidence for having come up with it.

Seeing the material form of an invention, and deciding, 1.) I want one. 2.) I can make it with my own labor applied to materials I can acquire. implies that the material form of the invention, the embodiment of the inventor's idea, has value to you. Absent the observation of the material form of the invention, would the two subsequent thoughts have occurred to you?

Edited by dream_weaver
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6 minutes ago, DonAthos said:

As we are dealing with a generic "Machine B," we can generally say that Man B must come to understand what Machine B is (including its purpose), how it operates, and how it may be constructed.

How does he come to know these things, that is, how does he come to know there is something in fact he would like to manufacture?

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9 hours ago, dream_weaver said:

"An idea as such cannot be protected until it has been given a material form.", so as in the material form of a book, giving rise to copyright, the material form of an invention puts for the tangible form of the "idea" in either case, serving as the evidence for having come up with it.

Seeing the material form of an invention, and deciding, 1.) I want one. 2.) I can make it with my own labor applied to materials I can acquire. implies that the material form of the invention, the embodiment of the inventor's idea, has value to you.

I want to answer the question you've asked, but first a comment on this: "the material form of the invention," when we're discussing Machine B, is not alone "the embodiment of the inventor's idea." It is also (and more directly) the embodiment of Man B's idea. If Man B did not have the idea to build Machine B, and if he did not perform the mental effort required to construct it, then Machine B would not exist.

To try to look at this another way, a million men may have a million ideas, and none of them would serve your circumstances, your life. Or perhaps one does. To identify that idea, to understand it, to put it to use for yourself... well, that's your effort, and the fruit of that effort is no less the embodiment of your own ideas than anyone else's.

9 hours ago, dream_weaver said:

Absent the observation of the material form of the invention, would the two subsequent thoughts have occurred to you?

Independent invention is certainly a possibility, but for the sake of this line of argument, let us say not. Let us say that absent observation of the material form of the invention (Machine A), Man B would not have had the subsequent thoughts of "I want a machine like Machine A" (which, as stated, is impossible without Machine A's prior existence) and "I can make Machine B."

What then?

9 hours ago, Eiuol said:

How does he come to know these things, that is, how does he come to know there is something in fact he would like to manufacture?

I believe that in the present scenario, I'd said this:

15 hours ago, DonAthos said:

Man A has built Machine A and, a week later, Man B observes Man A walking down the street utilizing Machine A (in whatever manner Machine A is to be utilized). From this, Man B gets the idea that his life, too, may be benefited by such a machine... and he sets to work to build one for himself.

Does that answer your question?

Or if this does not serve, it could be the earlier scenario I'd presented with the fnife/knork/SteakSabre 2000, with Man B being invited to dinner at Man A's home, or it could be witnessing Man A climb a tree to get a banana; all of these are essentially the same though the details change.

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16 hours ago, DonAthos said:

Or if this does not serve, it could be the earlier scenario I'd presented with the fnife/knork/SteakSabre 2000, with Man B being invited to dinner at Man A's home, or it could be witnessing Man A climb a tree to get a banana; all of these are essentially the same though the details change.

How was it that he got the idea - how was it that he was able to see Machine A doing something useful? It's not like the SteakSabre materialized out of nowhere and started slicing steaks like a Dr. Seuss story. Knorks and fnifes are that way, too. You're not talking about inspiration for a SteakSchimitar, you're talking about recreating a SteakSabre. So, how is Man B able to value SteakSabres? Not literally -that- SteakSabre, but SteakSabres in general.

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