Intellectual property

[New Buddha]

The courts define harm as theft of Intellectual Property.  And yet the anti-IP argument is that harm can only be theft of Real and Chattel property. (Leaving aside physical harm, extortion, threats, bribery, etc.)

This seems to be based on the position that all creative activity is copying?

Is this an accurate summary?

If person B copied from person A, then why can't person C copy from person B?

Novelty and/or improvement should not be covered by IP.

....<A < B < C....

Edited February 12, 2016 by New Buddha

[Devil's Advocate]

There are several issues to address here, but the one that jumps out at me is the obvious use of force to accomplish the  physical/emotional harm you're referring to.  The kind of copying we are referring to doesn't require putting a gun to your head.  Only the advocacy side needs this kind of threat to rationalize IP as a "security".

Whether innovating or copying innovation, the only activity required to produce property can be described as focused mental activity combined with physical effort.

[New Buddha]

I was trying to define "harm" solely in the context of Property.  Taking Real and Chattel Property "harms" an individual, where as making a copy of Real property does not "harm" a person.

And it appears that you do agree with my statement that Novelty and Improvements on previous inventions should not be protected by any form of Intellectual Property (i.e. Patents, Trademarks, Copyrights, Trade Secretes, etc.).

One thing that I've learned from research into Intellectual Property is that the large percentage of IP covers only Novelty and Improvements -- and that there are very few "paradigm shifts" in cars, music, novels, etc.  The telephone has changed over the years, but essentially a mobile phone is an evolved form of the first phone invented.  And even the components of the first phone had predecessors.

It really has taken me till now to boil down the the essential points of disagreement.  For many posts, I was truly confused by how we were using the same words so differently.  Forums are not the best format to arrive on agreed definitions.  Over a cup of coffee, we could do in 10 minutes what might take days on the forums.

So your statement, "Whether innovating or copying innovation, the only activity required to produce property can be described as focused mental activity combined with physical effort." , seems to be the point of disagreement.  And I will try and narrow my replies to addressing this statement.

edit:  Devil, what is it you do for a living?  How does IP impact your profession?

Edited February 12, 2016 by New Buddha

[Devil's Advocate]

I work in Architecture, but primarily from the IT end, so I've enjoyed and can relate to your architectural references.  We might do well to continue in that vein.  In terms of intellectual property, I am strongly influenced (or held back :o) by Locke's views, so you may approach my statements with that in mind.

[New Buddha]

The US Revolution from a Constitutional Monarch to a Constitutional Republic was, all things considered, fairly straight forward.  It was not a social revolution, as was the mess that became the French Revolution.  Our's was lead by the very wealthy and educated elites who believed themselves to be disenfranchised from representation in the English government.  Many were Nonconformists (or descended from them) and denied full Civil Rights in England.  Our supporters in Britain were mainly Whigs.  Without them, the Revolution would probably have not happened.  Neither would the reconciliation with England.

The reason I make an extended point of this is because any discussion of changing Intellectual Property Laws needs to take into account what will replace them.  I'm pretty sure that we all agree that we would like to live in a society where authors, inventors, composers, etc. can earn a living.  So if we abolish Patents, Trademarks, Copyrights, etc., what will replace them?

My position is that we do live in that type of society, and that there exists a well vetted and fairly objectively defined system already in place.  Is it perfect? No.  Can it be abused? Yes.  Can a better system be devised that won't put us at a disadvantage with other countries?  How would I personally (or you) benefit from a change?  Would companies invest $802 Million in a new drug to bring it to market?

Years ago on this forum, I took the position that the Municipal Corporation form of City Government in the United States was pretty good.  And that the Building and Zoning Codes would still need to exist in some form even in a perfect laissez faire society.  Of course I was called a Nazi, a Corporate Fascist, Communist, anti-Life, etc. But this was by people who had no idea of how a City actually works (engineering wise) or how they came to look the way the do.  Also, it would be almost impossible to transition current Cities to Cities where there is no government ownership of land.

I don't believe that there is anything to gain from completely overthrowing the current IP laws.  I can live with imperfections making change over time (such as Fair Use laws) to make a system better.

Edited February 13, 2016 by New Buddha

[New Buddha]

10 hours ago, Devil's Advocate said:

Whether innovating or copying innovation, the only activity required to produce property can be described as focused mental activity combined with physical effort.

I somewhat apologize for the above post, because it summarizes my position on how we create a society that protects persons who create innovative things.

Regarding the above quote and innovation vs. copying innovation.

20 years ago, in my intern years, I would be given a hand sketch from a Senior Designer and asked to "copy" it into CAD.  Right out of college, I had no real knowledge of what I was doing.  I had no where near the length and breath of knowledge that the Designer with 20+ years of experience had.  I had no knowledge of construction, codes, the client's program, etc.  I didn't know the office layer standards, how to set up X-ref's, sheets, titleblocks, etc.  But I did create a half-assed sketch that was then heavily red lined (i.e corrected) by the Designer.  The Designer could do my job, but I could not do his.  Whereas it took me 10 years just to reach the point where I was dangerous.

There is a profound difference between what I did, and what the Designer did.  The value of the design to the client was not created by me - it was created by the Designer.  I barely knew what I was doing.

This could also be said of someone who downloads a music file in violation of Copyright laws.  Does the copying of a file equate with the creation of music? 

Edited February 13, 2016 by New Buddha

[Devil's Advocate]

5 hours ago, New Buddha said:

... I don't believe that there is anything to gain from completely overthrowing the current IP laws.  I can live with imperfections making change over time (such as Fair Use laws) to make a system better.

... "and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed." ~ DOI

1 hour ago, New Buddha said:

... There is a profound difference between what I did, and what the Designer did.  The value of the design to the client was not created by me - it was created by the Designer.  I barely knew what I was doing...

Thus a legitimate need to be able to copy, as in the usual case, to learn.

1 hour ago, New Buddha said:

... This could also be said of someone who downloads a music file in violation of Copyright laws.  Does the copying of a file equate with the creation of music? 

But it would be comparing apples to oranges.  The artist who records their work isn't creating music; they are copying it.  That is not to say they didn't create the music they are copying to sell, but you need to differentiate the actual process.  In making marketable duplications of their original, they aren't exerting any more effort than the pirate does; neither are creating music at that point...

[New Buddha]

57 minutes ago, Devil's Advocate said:

That is not to say they didn't create the music they are copying to sell,....

Can you elaborate?

Add Edit:  I'm making an honest effort to engage in a dialog to explore the difference between innovation and copying.  Your one-line responses and parsing of selected sentences of mine doesn't empress me.  If this is the extent of how you wish to contribute in the exchange, then I'll back out now.

I invited you to comment on how a transition would be made to a society without IP laws.  What legislation would need to be passed?  In what order? What timeline? How would we "grandfather" existing business?  What would be the improved outcome?  And all I got was a meaningless quote.

If you wish to continue, then I need to see evidence that you understand the opposite view - and that it's not just that the opposite view want's to, "Deprive the right to life of others."

Witty, one-line bon mot replies are tiring.  I'll just quit wasting my time if that's all I get in return.

Edited February 13, 2016 by New Buddha

[dream_weaver]

New Buddha,

Akin to your fine-lining a sketch into a completed drawing, and a parallel acquired learning to play a piano, the student starts off learning to associate the notes seen on the sheet music to the which keys to press, for how long they are held, etc. Mozart was reported to have gone to a performance and upon returning home, able to play what he had heard nearly verbatim.

It's one thing to take a melody line and fill in background accompaniment. A good sight-reader can play many things by just having the music set in front of him. Mozart had a good ear. He could guide his hands to replicate what he had heard. Going on, as Mozart did, to create new arrangements has a merit of its own right.

Knowing some of this, what Miss Rand did with the music of Richard Halley in Atlas Shrugged, can strike a chord. Even though she expressed it using words, the young brakeman and Francisco were both able to copy the melody line of Halley's Fifth Concerto. Dagny was able to recognize it as Halley's work in both instances. When the brakeman was whistling it, Dagny found herself hearing it as if it was being played with the background accompaniment, until she jolted herself back to the reality of what she was actually listening to. The term "created" here has two senses. In the case of the young brakeman and Francisco, they were able to "create", or more precisely recreate, the melody line by whistling it absentmindedly while going about their business.

[Devil's Advocate]

9 hours ago, New Buddha said:

Can you elaborate?

Add Edit:  I'm making an honest effort to engage in a dialog to explore the difference between innovation and copying...

Yes, and I think we should work in the direction of developing a credible working example we are both familiar with.  As an aside, I was encouraged to see this day's quote is from Frank Lloyd Wright: "Noble life demands a noble architecture for noble uses of noble men".  Let us proceed with noble intentions and see where that leads us...

Our experience ought to allow us to agree that blueprinting a designer's work, while a labor per se, isn't equivalent to the creation of a design, but neither is it a mindless act.  The novice performing tasks under the direction of a professional is in a position that is primarily educational, but still billable (even as an intern) because there is a client paying for the services of the professional and those he employees.

Therefore when you ask, does the copying of 'X' equate with the creation of 'X', the honest answer is, no.  Both the professional and the novice are working, but they are producing the designer's property, not the novice's.  The novice has an opportunity to profit from learning to apply the designer's knowledge (and we'll get to that), or to profit from a misrepresentation of the designer's knowledge.

He might, for example, take the designer's print to another client and attempt to sell it as his own design, in which case we'd both agree that particular action of copying would involve theft and fraud, correct?

Shall we proceed??

 

 

[Devil's Advocate]

18 minutes ago, dream_weaver said:

... The term "created" here has two senses. In the case of the young brakeman and Francisco, they were able to "create", or more precisely recreate, the melody line by whistling it absentmindedly while going about their business.

I would say that in general, create and recreate are better terms to use than innovate and copy.  However the following association of recreation as absentmindedly going about their business undermines, or at least plays into the presumption that copying is a distinctly unmindful (and illicit) activity. This presumption is what the Original DA (I believe) and myself are arguing against.

[dream_weaver]

59 minutes ago, Devil's Advocate said:

I would say that in general, create and recreate are better terms to use than innovate and copy.  However the following association of recreation as absentmindedly going about their business undermines, or at least plays into the presumption that copying is a distinctly unmindful (and illicit) activity. This presumption is what the Original DA (I believe) and myself are arguing against.

I find nothing illicit in what was portrayed by Atlas Shrugged for either the young brakeman or Francisco on this point.

[Eiuol]

2 hours ago, Devil's Advocate said:

He might, for example, take the designer's print to another client and attempt to sell it as his own design, in which case we'd both agree that particular action of copying would involve theft and fraud, correct?

It would. But imagine it didn't involve taking the blueprint, say, because he took pictures as corporate espionage, or had a really good memory so that he could remember the design. Perhaps he recreates/copies that exact design a little bit each day (clearly, it's not absent-minded to recreate it, but it's not the same thing as being the first one to write up the plans). This gets into "trade secret" sort of agreements, but just for making some kind of progress, what if the designer didn't make such an agreement - do you just say "sorry, no non-disclosure agreement, can't help you" ? I'm just trying to pin down your idea a bit more.

[Devil's Advocate]

4 hours ago, dream_weaver said:

I find nothing illicit in what was portrayed by Atlas Shrugged for either the young brakeman or Francisco on this point.

... and on the issue of copying being distinctly unmindful?

 

[New Buddha]

8 hours ago, Devil's Advocate said:

He might, for example, take the designer's print to another client and attempt to sell it as his own design, in which case we'd both agree that particular action of copying would involve theft and fraud, correct?

In a society without Copyright laws, there would be no reason for "another client" to buy drawings.  They would just obtain a set and make their own copies and build the building.

Under current Copyright law, drawings aren't kept under lock and key like gold bars. This is why an architect can show a design to a potential client confident that the design will not be constructed without the architect's permission.  There are typically hundreds of copies of drawings floating around the city when a building is built.  Many of which are, for legal reasons, archived by the Owner, the Bank, the Building Department, Fire Marshal, General Contractor, Subcontractors, Vendors, Fabricators, etc.  Drawings are placed at Plan Centers and on-line and can be copied by virtually anyone.  In this sense, they are different from books and recorded music.

Edit:  I agreed with the points you made in your post, other than the one that I quoted above.  Certainly interns have value and are worth the investment in time and money to bring up to speed.  And, often they are much more up to date regarding CAD software, 3d Modeling software, etc., than are the older members of the firm.  And a good, senior drafter is worth is weight in gold.

 

Edited February 14, 2016 by New Buddha

[New Buddha]

8 hours ago, Devil's Advocate said:

He might, for example, take the designer's print to another client and attempt to sell it as his own design, in which case we'd both agree that particular action of copying would involve theft and fraud, correct?

Regarding fraud, as something distinct from copying.

Items such a Rolex, Nike, Levi's, etc., only came to have recognized value due to their exclusivity, which is afforded by Intellectual Property Laws.  In this sense, companies that manufacture fraud Levi's Jeans do so as a way to capitalize on the investment made by others.  Levi's has extensive marketing campaigns.  This is exploited by illegal knock-offs. 

In a society without IP, Brands would have no value or meaning.  They would never develop, if everyone is free to make exact duplicates.

[dream_weaver]

8 hours ago, Devil's Advocate said:

... and on the issue of copying being distinctly unmindful?

 

The term I used was absentmindedly. In the case of the young brakeman, he was preoccupied with adjusting the controls of the air-conditioner. It was only after Dagny mentioned that Richard Halley wrote only four concertos that he was "jolted back to reality".

Out of curiosity, would this paraphrastic excerpt from "For The New Intellectual" strike you as being "distinctly unmindful"?

Keep in mind, a bank robber will spend years of planning, ingenuity and effort in order to prove to himself that he can exist without effort. Reason, to him, is a means of defeating his victims, a menial servant charged with the task of rationalizing the metaphysical validity and power of his whims. It is not that he cannot, or does not think, he can and does—but thinking, to him, is not a means of perceiving reality, it is a means of escaping the necessity of rational perception.

[Devil's Advocate]

In terms of copying intellectual property, is there a distinction you are making between work that is performed absentmindedly and unmindful or mindlessly?  Again, what I'm questioning is the presumption that copying (recreation by whistling in this case) is a distinctly unmindful and illicit activity.  We apparently agree that there is nothing illicit about coping per se, and if you also find nothing unmindful in what was portrayed by Atlas Shrugged for either the young brakeman or Francisco, then we are copacetic on this point.

It may be a small point, but applied forward it suggests my answer to your second example of yet another illicit activity.

[DonAthos]

I see that there's a discussion of "mindfulness" going on, trying to parse between varying degrees, including "absentmindedness" and etc.

I don't have time to read everything through and compose a substantial response at the moment, but I just wanted to add a brief note in the hopes it might prove useful. In my opinion, the question of "mindfulness" matters thus:

Objectivism recognizes that material wealth is the result of both mental and physical labor, and it accords property rights to the man who has performed that labor (and properly so). With respect to IP, it is claimed that the innovator of some type (the plow, as such) has the rights to each iteration (Plow A, Plow B, etc.), because he has performed the mental labor required for their creation in his act of innovation. Contrariwise, Man B (the builder of Plow B ) merely offers physical labor; his act is accounted (at the very least comparatively) "mindless," and thus his claim to property is not recognized.

I disagree with this. I believe that the creation of each particular plow is, of its nature, fully mindful. We would recognize the mindfulness of this act in year 21 following the issuance of some patent, when that patent is expired, and recognize the property right of Man B to Plow B accordingly. The act itself is no less mindless in year 19.

It is an error to hold such "copying" (as in the building of a second plow) as "mindless."

[Devil's Advocate]

Moving forward (I hope), we can see by example of the designer, the novice and the client, certain fundamental characteristics in the action of creating an original work (property).

1) The designer creates his own property, with or without the labor of the novice or reward of a client.

2) The novice benefits by learning the means to create (distinct from recreating) property from the designer.

3) The client benefits by having a unique source (the designer) to trade property with.

15 hours ago, New Buddha said:

Regarding fraud, as something distinct from copying...

See my response to dream_weaver above.

15 hours ago, New Buddha said:

... In a society without IP, Brands would have no value or meaning.  They would never develop, if everyone is free to make exact duplicates.

There are no exact duplicates; A=A.  The original property of the designer exists as a unique material object, and as such has a specific value that operates independently from the process of duplication.  If anything, duplication actually increases the value of the original, as can be seen in comparing the values of limited edition duplicates to the original piece of art.  It's all property, but the value of the original isn't degraded by duplication.

21 hours ago, Eiuol said:

It would. But imagine it didn't involve taking the blueprint, say, because he took pictures as corporate espionage, or had a really good memory so that he could remember the design. Perhaps he recreates/copies that exact design a little bit each day (clearly, it's not absent-minded to recreate it, but it's not the same thing as being the first one to write up the plans)...

See my response to dream_weaver above.

21 hours ago, Eiuol said:

... This gets into "trade secret" sort of agreements, but just for making some kind of progress, what if the designer didn't make such an agreement - do you just say "sorry, no non-disclosure agreement, can't help you" ? I'm just trying to pin down your idea a bit more.

This actually occurred in my office to some degree, where employees of the principle designer/owner occasionally worked on their own time in his office, using knowledge gained from the designer, along with his supplies to create drawings for their own clients.  The practice was ended by the threat of termination of anyone who continued to do so.  Suffice it to say that illicit activities that bite the hand that feeds them are generally resolved within the kind voluntary contractual agreement that exist with employees who act as agents of their employer, or are dismissed.

--

edit:  I'm really hoping to move beyond a discussion that begins and ends with, "Copying (recreating) is a mindless, illicit activity."

Shall we proceed?

Edited February 14, 2016 by Devil's Advocate
clarification

[New Buddha]

22 minutes ago, DonAthos said:

With respect to IP, it is claimed that the innovator of some type (the plow, as such) has the rights to each iteration (Plow A, Plow B, etc.)

Don,

Your terms, Plow A and Plow B, are they different designs? or a duplicates of the same design?

Inventor A claims rights to each iteration following plow A's design (A1, A2, A3...).  While Inventor B can patent plow design B if and only if it meets the Point of Novelty required by law, and doing so, he claims right to each iteration (B1, B2, B3....).

This is just a straight forward question of how you are using terms.

[New Buddha]

1 hour ago, Devil's Advocate said:

If anything, duplication actually increases the value of the original, as can be seen in comparing the values of limited edition duplicates to the original piece of art.  It's all property, but the value of the original isn't degraded by duplication.

But "limited edition duplicates" depends on the existence of Copyrights --  which you don't want to exist?  The artist controls the reproduction of the limited edition duplicates, by law, and receives the income from the sales.  (Yes, there may be another party contracted by the artist to make lithographs, prints, etc., but that's not relevant).  And the greater the number of limited editions, the lower the price will drop.  This is just basic supply vs. demand.  If anyone could "legally" pirate AutoCAD, then AutoDesk would go out of business.

Are you arguing for or against Copyrights?  I'm confused.  Without Copyrights, making copies is fully legal without the artists permission.

Regarding mindfulness or not of copying, I don't find this to be an issue.  The law which limits the "right to make copies" isn't predicated on mindful or mindlessness.

Illicit, however means illegally making copies of Copyrighted materials.

Edit:  Is someone trying to make the point that if you whistle a Copyright protected song, you are breaking the law?  I'm a bit lost on this.

 

Edited February 14, 2016 by New Buddha

[New Buddha]

1 hour ago, Devil's Advocate said:

There are no exact duplicates; A=A. 

A more technical word is "indistinguishable" duplicate.  See link Burberry:

excerpt:

The defendants owned or controlled at least 10 US companies engaged in importation of legitimate and counterfeit handbags and wallets. They also had authority over at least three companies in China and Hong  Kong that manufactured and exported counterfeit goods.

 

During trial, the government indicated, on several occasions, that whether a claimed counterfeit mark was “substantially indistinguishable” from a legitimate mark should be based on the opinion of a “reasonable consumer of ordinary intelligence” or an “average person”. The defendants objected to the government’s phrasing as an incorrect statement of the law, and the objections were sustained by the district court. The district court then instructed the jury that it was to apply the definition of the law as set forth by the court and not by the government, and it instructed the jury to compare the marks side-by-side using their “own eyes” to decide for themselves whether they were “substantially indistinguishable”. The jury then found the plaid pattern on the seized goods to be a counterfeit of the 'Burberry check' mark, and the defendants were found guilty on all charges.

 

How did we live without the internet?

Edited February 14, 2016 by New Buddha

[DonAthos]

1 hour ago, New Buddha said:

This is just a straight forward question of how you are using terms.

I have no problem answering your question (though I apologize in advance if my answer is not so straightforward as your question is meant to be). Before I do, though, and I say this with all respect, I'd thought we'd earlier reached a point where we were agreed that we were not interested in pursuing the same questions on this topic. I'm interested in the philosophical basis of IP, and its relationship specifically with Objectivism and Ayn Rand's essay on the topic, and I had thought that you'd expressed that such questions really didn't matter to you so much as current IP law (which you have no issues with) and practical solutions for implementing changes to them.

For instance, this "Point of Novelty" you mention doesn't really interest me (which speaks to my answer to your question, coming shortly). To me, it's like... discussing the supposed Triune Nature of the Christian God, before resolving the issue as to whether or not there's any reason to believe in any god at all. Or the famous debate of "how many angels can dance on the head of a pin?" Some theological doctrine about whether angels have mass or not seems besides my point, if I'm arguing that angels do not exist.

I'm arguing against the Objectivist philosophical argument for IP, as best as I understand it: that it is a "right"; that "copying" is "mindless"; that there is something immoral about utilizing another person's "mental labor"; and etc. Further questions as to the best implementation of IP or how best to change current law, or etc., are perhaps interesting/illuminating in their own right, and I don't mind commenting on them from time to time, but they do not appear to speak to the fundamental questions I'm attempting to resolve.

1 hour ago, New Buddha said:

Your terms, Plow A and Plow B, are they different designs? or a duplicates of the same design?

My most truthful answer will not satisfy you, I fear, but it is this: it does not matter to me.

When Man B builds his own plow (which I have labelled Plow B), I do not care about the nature of his design, what it looks like, or the degree of similarity it is judged to share with the plow Man A has built (Plow A). I do not recognize any degree of similarity between these plows as degrading Man B's property rights, which are the right to the fruits of his labor, the plow he has built, the wealth he has created (just as Man A has those very same rights to the plow he has built, for the very same reasons).

Now, what I presume to be a more satisfactory answer: let them be duplicates of the same design, down to the color.

1 hour ago, New Buddha said:

Inventor A claims rights to each iteration following plow A's design (A1, A2, A3...).  While Inventor B can patent plow design B if and only if it meets the Point of Novelty required by law, and doing so, he claims right to each iteration (B1, B2, B3....).

Plow A and Plow B are two different existents. I've titled them as I have, not as an attempted rhetorical point, but in the manner of variables, just as Man A is Man A and Man B is Man B (my labeling of the plows follows form, for convenience's sake); even if they are identical twins I would not then feel compelled to refer to them as A1 -- the twin who emerged from the womb first -- and A2, the Wicked Copying Jacob to our Noble Innovator Esau.

You may refer to Plow B as you'd like, but it is what it is: a distinct instance of material wealth, created by Man B (or however you would wish to name him), and I argue belonging to him accordingly. Insofar as they are "indistinguishable," I presume that this is not so (for if it were, we would have much larger problems in sorting everything out). They are distinguished by their having distinct locations in space/time, being constituted of different (if similar) material, and also the specific manner of their creation, which is the basis upon which I account one plow to one man and the other plow to the other, each to whomsoever built it. If we need some further mark to tell between the two plows, then I suppose that Man A could have carved his name on Plow A, and Man B on Plow B, which I don't think would qualify as any "Point of Novelty," but then, that's not a requirement I recognize. If these men can tell between the plows they have built, it is enough for me.

1 hour ago, New Buddha said:

This is just a straight forward question of how you are using terms.

You may ask whatever questions you'd like, and I'll answer to the best of my ability, so long as you understand that I'm not sure we're interested in exploring the same topics, or are approaching this from the same general point of view, which might make a satisfactory resolution... take slightly more time than a cup of coffee.

But if we can continue to discuss things in civility (and rest assured, I am far from calling you "a Nazi, a Corporate Fascist, Communist, anti-Life" on the basis of our current disagreement), and if it serves our evolving interests to do so, I'm pleased to accommodate.

[New Buddha]

7 minutes ago, DonAthos said:

I'm arguing against the Objectivist philosophical argument for IP, as best as I understand it: that it is a "right"; that "copying" is "mindless"; that there is something immoral about utilizing another person's "mental labor"; and etc.

Nice post.  Here seems to me to be the main point to discuss.  I'll give some thought on how best to reply.