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Merge: Rights, Property

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Not true.  The idea of lateral control was not new.  Previous attempts at lateral control included such things as shifting weight from side to side and using rudders to induce yaw, both of which work, just not very well.  The Wright patent did not cover such things, so it cannot be said to be a patent on the idea of lateral control.

A variable-incidence, movable surface is a device.

Since the Wrights' invention was using a variable-incidence surface to provide for roll control, they no grounds to claim exclusivity for the process of lateral control, as Custiss's device was substantially different from theirs.

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Since the Wrights' invention was using a variable-incidence surface to provide for roll control, they no grounds to claim exclusivity for the process of lateral control, as Custiss's device was substantially different from theirs.

Again you are missing the point.

Curtiss copied the concept of wing warping and lift from the Wright Brothers which the Wrights had CREATED, NOT DISCOVERED.

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Again you are missing the point.

Curtiss copied the concept of wing warping and lift from the Wright Brothers which the Wrights had CREATED, NOT DISCOVERED.

Since Curtis's device did not involve wing warping at all, then it can hardly be considered a copy. It is rather like saying that the digital calculator is a copy of the abacus.

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Since the Wrights' invention was using a variable-incidence surface to provide for roll control, they no grounds to claim exclusivity for the process of lateral control, as Custiss's device was substantially different from theirs.
Since Curtis's device did not involve wing warping at all, then it can hardly be considered a copy. It is rather like saying that the digital calculator is a copy of the abacus.

I have given you examples of "the process of lateral control" that are not covered by the Wright patent, such things as shifting weight from side to side and using rudders to induce yaw. Your continued insistence that somehow the Wrights got a patent on "the idea of lateral control" or that they claimed "exclusivity for the process of lateral control" is just plain wrong.

The Wright's did not patent wing warping. That term never appears in their patent. What they patented was the essence of their creation: the use of a moveable surface to generate a controllable, aerodynamic force around the longitudinal axis of the airplane. That covers an aileron as well.

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I have given you examples of "the process of lateral control" that are not covered by the Wright patent, such things as shifting weight from side to side and using rudders to induce yaw.  Your continued insistence that somehow the Wrights got a patent on "the idea of lateral control" or that they claimed "exclusivity for the process of lateral control" is just plain wrong.

The Wright's did not patent wing warping.  That term never appears in their patent.  What they patented was the essence of their creation:  the use of a moveable surface to generate a controllable, aerodynamic force around the longitudinal axis of the airplane.  That covers an aileron as well.

Since rudders are most certainly "moveable surfaces," it is obviously not true that what the Wrights' patent covered was uniquely their own creation.

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Since rudders are most certainly "moveable surfaces," it is obviously not true that what the Wrights' patent covered was uniquely their own creation.
Every creation of man is a re-arrangement of pre-existing matter. The light bulb, fundamentally, is simply a re-arrangement of a glass jar and wires. That does not change the fact that it took an act of creation to conceive and build the first one.

This discussion has deteriorated into a debate about the validity of one patent, instead of a discussion of the larger issue of whether Intellectual Property should be protected at all. I obviously believe it should. Let's go back to that question.

Actually, the Wright Brothers' lawsuit against Glenn Curtiss is a perfect example of how patent law imposes a monopoly without protecting legitimate property rights. 
Your first statement indicated a broad disagreement with the very concept of Intellectual Property. Is it your position that Curtis should have been allowed to make direct copies of the Wright Flyer? I know you are saying he didn't copy it, but should he have been allowed to if he so wished?

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Every creation of man is a re-arrangement of pre-existing matter.  The light bulb, fundamentally, is simply a re-arrangement of a glass jar and wires.  That does not change the fact that it took an act of creation to conceive and build the first one.

This discussion has deteriorated into a debate about the validity of one patent, instead of a discussion of the larger issue of whether Intellectual Property should be protected at all.  I obviously believe it should.  Let's go back to that question.

Your first statement indicated a broad disagreement with the very concept of Intellectual Property. Is it your position that Curtis should have been allowed to make direct copies of the Wright Flyer?  I know you are saying he didn't copy it, but should he have been allowed to if he so wished?

Patent laws are rather like laws that punish flag burners. Suppose I have a farm and grow cotton. I harvest the product, spin it into thread, dye the thread, put it in a loom and produce a number of colored strips which I sew into a flag. No one would dispute that the final product is the result of my labors. No individualist could reasonably argue that the flag actually belongs to the state or the majority or to the original designer. Thus to punish me for burning the flag, is to prevent me from using and disposing of my own property.

The principle is no different with any other product. Imagine that A invents a paper airplane that does two loops before hitting the floor. We can agree that the airplane is clearly A’s own property (provided that the raw material, paper, belonged to A in the first place). We can also agree that A has the right to make copies of his airplane (with his own materials) and to sell them to others.

But suppose that B, following A, makes the same paper airplane in his own home with his own materials. We observe that in doing so B has taken none of A’s property. A still has everything he started with.

But what if A claims, “I created the idea of the two-loop paper airplane. That idea is mine alone.”

What would that mean? Is A claiming that he owns all physical instances of his paper airplane idea? If that is the case, then anyone buying A’s paper airplane from him would be a victim of fraud. For A would have pretended to sell them something that he continues to claim title to.

Or is A claiming that he has ownership of the pure idea of the two-loop paper airplane? But how would that work? Since ideas exist only in people’s minds, claiming ownership of an idea is essentially to claim ownership over the minds of others.

Thus patents can be seen to be methods for allowing one person to control the property or mind of another. Patents are not natural rights but state-granted privileges, a fact made obvious by their being awarded for an arbitrary number of years.

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Patent laws are rather like laws that punish flag burners.  Suppose I have a farm and grow cotton. I harvest the product, spin it into thread, dye the thread, put it in a loom and produce a number of colored strips which I sew into a flag.  No one would dispute that the final product is the result of my labors.  No individualist could reasonably argue that the flag actually belongs to the state or the majority or to the original designer.  Thus to punish me for burning the flag, is to prevent me from using and disposing of my own property.

The principle is no different with any other product.  Imagine that A invents a paper airplane that does two loops before hitting the floor.  We can agree that the airplane is clearly A’s own property (provided that the raw material, paper, belonged to A in the first place).  We can also agree that A has the right to make copies of his airplane (with his own materials) and to sell them to others. 

But suppose that B, following A, makes the same paper airplane in his own home with his own materials.  We observe that in doing so B has taken none of A’s property.  A still has everything he started with. 

But what if A claims, “I created the idea of the two-loop paper airplane. That idea is mine alone.”

What would that mean?  Is A claiming that he owns all physical instances of his paper airplane idea?  If that is the case, then anyone buying A’s paper airplane from him would be a victim of fraud. For A would have pretended to sell them something that he continues to claim title to.

Or is A claiming that he has ownership of the pure idea of the two-loop paper airplane?  But how would that work?  Since ideas exist only in people’s minds, claiming ownership of an idea is essentially to claim ownership over the minds of others.

Thus patents can be seen to be methods for allowing one person to control the property or mind of another.  Patents are not natural rights but state-granted privileges, a fact made obvious by their being awarded for an arbitrary number of years.

Wow, nicely put :lol:

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But entirely wrong. Patents do not protect abstract ideas. They protect solutions. There is a world of difference that is being ignored.

Rights are conditions necessary for people to think and to take reasoned action (action based upon the conclusions they reach). Thought and reasoned action are absolutely necessary to a person should he wish to live. Patents are a legal protection on a certain category of reasoned action, solutions. Without them, people who live by solving problems cannot live, as that necessary condition has been withdrawn or has never existed.

It's either-or: patents and solutions, or no patents and no solutions. The latter choice is death.

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It's either-or: patents and solutions, or no patents and no solutions. The latter choice is death.

So you face a problem and instead of inventing a solution that would save your life - you decide you would rather die as opposed to letting anyone else receive unearned benefits from your efforts?

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But suppose that B, following A, makes the same paper airplane in his own home with his own materials.  We observe that in doing so B has taken none of A’s property.  A still has everything he started with. 
This is the logical fallacy of begging the question of what constitutes property. You start with the premise that property consists solely of specific, material entities -- i.e. you start with the premise that there is no such thing as intellectual property -- and then you use that premise to "prove" that there is no such thing as intellectual property. That is fallacious. You cannot assume as true that which you are trying to prove.

The fundamental question is this: does the man who creates a new device or design -- a solution, to use y_feldblum's term -- possess the right to the use and disposal of that creation -- or are those who did not create it entitled to copy it without the creator's permission?

Copying a design is an unauthorized use -- and is just as much a violation of property rights as theft. "B" does not have the right to move into "A's" vacation home for a month without "B's" permission, even though once "B" leaves, “A still has everything he started with".

But what if A claims, “I created the idea of the two-loop paper airplane. That idea is mine alone.”

What would that mean? Is A claiming that he owns all physical instances of his paper airplane idea? If that is the case, then anyone buying A’s paper airplane from him would be a victim of fraud. For A would have pretended to sell them something that he continues to claim title to.

A patent confers on the holder the exclusive right to make and sell the patented item. Anyone who purchases the patented item from the inventor is granted an implicit license to use or consume that specific unit. So none of this is a problem. The purchaser understands that he is getting a license to use the item. There is no fraud.

Or is A claiming that he has ownership of the pure idea of the two-loop paper airplane? But how would that work? Since ideas exist only in people’s minds, claiming ownership of an idea is essentially to claim ownership over the minds of others.
What "A" can claim to own is the design of a two-loop paper airplane, PROVIDED that he can show that 1) the design is novel and unique, 2) it is not an obvious extension of existing designs and 3) that it works, i.e. it confers the benefit claimed by the inventor.

Thus the inventor does not own the "pure idea" of a two-loop paper airplane. What he owns is a design that makes it work.

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This is the logical fallacy of begging the question of what constitutes property.  You start with the premise that property consists solely of specific, material entities -- i.e. you start with the premise that there is no such thing as intellectual property -- and then you use that premise to "prove" that there is no such thing as intellectual property.  That is fallacious.  You cannot assume as true that which you are trying to prove.

I did not start with the premise that there is no such thing as intellectual property. My argument was built on the Lockean principle that an individual has the right to the products of his labor. If a man makes something with his own materials, then it is rightfully his.

The fundamental question is this: does the man who creates a new device or design -- a solution, to use y_feldblum's term -- possess the right to the use and disposal of that creation -- or are those who did not create it entitled to copy it without the creator's permission?

Answering “yes” to both questions does not pose any contradiction, for the inventor can still use his creation at the same time and in the same way as his neighbor who copies it.

Copying a design is an unauthorized use -- and is just as much a violation of property rights as theft.

This is a vigorous assertion, but you have not provided any proof of it.

  "B" does not have the right to move into "A's" vacation home for a month without "B's" permission, even though once "B" leaves, “A still has everything he started with".

Correct, because A has the right to keep his vacation home vacant if he so wishes. What A does not have the right to do is exercise any control over B’s identical copy of A’s vacation house. B’s house was constructed with materials acquired by B with his own labor. B’s use of his own vacation house has no effect on A’s ability to use his. For A, then, to seize by patent privilege control of B’s vacation house would be to assert authority over someone else’s property.

A patent confers on the holder the exclusive right to make and sell the patented item.  Anyone who purchases the patented item from the inventor is granted an implicit license to use or consume that specific unit.  So none of this is a problem.  The purchaser understands that he is getting a license to use the item.  There is no fraud.

Fine. Therefore, if A does not own all physical instances of his device, he has no right to control B’s copies of the device.

What "A" can claim to own is the design of a two-loop paper airplane, PROVIDED that he can show that 1) the design is novel and unique, 2) it is not an obvious extension of existing designs and 3) that it works, i.e. it confers the benefit claimed by the inventor.

The problem is that all devices are to some degree extensions of other existing devices. Alexander Graham Bell’s telephone was an extension of devices made by Michael Faraday and Johann Philip Reis. Faraday’s work, in turn, was built upon earlier work by Humphry Davy, and so on.

Thus the inventor does not own the "pure idea" of a two-loop paper airplane.  What he owns is a design that makes it work.

But here is a distinction without a difference. Once we separate the physical implementation of a design from the design itself, what do we have left but an idea?

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I did not start with the premise that there is no such thing as intellectual property.  My argument was built on the Lockean principle that an individual has the right to the products of his labor.  If a man makes something with his own materials, then it is rightfully his.

This principle is as much Marxist as it is Lockean - Lockean, because it deals with individual rights; Marxist, because it misidentifies the source of value, man's mind, as brute physical labor. The correct principle is: If a man makes something with his own mind, then it is rightfully his.

The problem is that all devices are to some degree extensions of other existing devices.  Alexander Graham Bell’s telephone was an extension of devices made by Michael Faraday and Johann Philip Reis.  Faraday’s work, in turn, was built upon earlier work by Humphry Davy, and so on.

Intellectual property rights are rights not to abstract ideas, but to solutions - which, incidentally, entail the concretizations of abstract ideas, themselves tasks which only thought and reasoned action can perform. Take the fact into account.

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This principle is as much Marxist as it is Lockean - Lockean, because it deals with individual rights; Marxist, because it misidentifies the source of value, man's mind, as brute physical labor. The correct principle is: If a man makes something with his own mind, then it is rightfully his.

You are conflating value and ownership, two distinctly different concepts. I have addressed only the source of ownership. I made no claim about how the value of goods is determined. In fact, I never even used the word “value.” (Just to be clear on this point, I completely reject Marx's labor theory of value because it does not take into account marginal utility and consumer demand. See Eugen Bohm-Bawerk, "The Ultimate Standard of Value" )

If a man makes something with his own mind, then it is rightfully his.

Sure. I have already acknowledged that paper airplane inventor A is entitled to the product he fashioned out of the materials he owned. But we cannot leap from that specific ownership to the broader claim that A owns every other similar paper airplane, for that would mean that A is entitled to the materials owned by other individuals. Nor can we say that he owns the idea for the design, for owning an idea could only mean the right to control the place where ideas reside: the minds of men.

Intellectual property rights are rights not to abstract ideas, but to solutions - which, incidentally, entail the concretizations of abstract ideas, themselves tasks which only thought and reasoned action can perform. Take the fact into account.

Good. Then A unarguably possesses the solution to how to make a paper airplane that does two loops before hitting the floor. But unless B is a slave of A or all of B’s physical property is in fact A’s property, then we cannot assert that the two-loop paper airplanes that B constructs really belong to A.

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The fundamental question is this: does the man who creates a new device or design -- a solution, to use y_feldblum's term -- possess the right to the use and disposal of that creation -- or are those who did not create it entitled to copy it without the creator's permission?

Answering “yes” to both questions does not pose any contradiction, for the inventor can still use his creation at the same time and in the same way as his neighbor who copies it.

y_feldblum is correct. When you state that "the inventor can still use his creation at the same time and in the same way as his neighbor who copies it", your premise is clear: the only things that can be created are specific, physical units. This is indeed the Marxist notion that the only source of value is physical labor -- with the corollary that the only things that can be property are the specific existents that result from physical labor.

To you, the action of man's mind in creating the design is irrelevant and deserves no consideration or protection. You recognize only the action of his muscles in making specific objects.

This is the manner in which you beg the question -- by arbitrarily asserting up front that man is entitled to the product of his physical labor, but not his mental labor. Your argument essentially consists of repeating this assertion -- without support -- mixed with a sprinkling of imaginary “practical” problems you think intellectual property creates – all of which I have answered.

Objectivism recognizes that for man to survive, he must have the right to the product of all of his efforts, mental as well as physical.

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y_feldblum is correct.  When you state that "the inventor can still use his creation at the same time and in the same way as his neighbor who copies it", your premise is clear: the only things that can be created are specific, physical units.  This is indeed the Marxist notion that the only source of value is physical labor -- with the corollary that the only things that can be property are the specific existents that result from physical labor.

You are attacking a straw man. You label my position on values as Marxist, when not only have I never even discussed values but I had previously made it clear that my views on that topic are explicitly anti-Marxist. You accuse me of arguing that creation applies only to matter, when I have made no such claim. (Obviously, ideas can be created. If they couldn’t then the sum total of mankind’s knowledge would be the same today as in Neolithic times.) The problem is with ownership of those ideas. The only way to keep a thought to oneself is to keep it a secret. Once the idea enters the mind of another human being it is a part of his memory. To claim ownership of the idea in his head is absurdly to claim ownership of a part of his mind.

To you, the action of man's mind in creating the design is irrelevant and deserves no consideration or protection.  You recognize only the action of his muscles in making specific objects.

Another rickety straw man for Don AisA to tilt at. I never said that muscles were the only necessary means for making devices, nor that the role of the mind was irrelevant and undeserving of protection. In fact, I hold that an inventor may use his property in any non-aggressive fashion to keep others from copying an invention. What he may not legitimately do, however, is employ the coercive power of the state to prevent others from manufacturing products employing their own property and the willing labor of others.

This is the manner in which you beg the question -- by arbitrarily asserting up front that man is entitled to the product of his physical labor, but not his mental labor.

No, I have made it clear in my previous posts an inventor is entitled to the product of both his mental and physical labor. The paper airplane inventor, I have said, is entitled to create, manufacture and sell all the airplanes he can. What he is not entitled to is the products made by those whom he has not employed.

Your argument essentially consists of repeating this assertion -- without support -- mixed with a sprinkling of imaginary “practical” problems you think intellectual property creates – all of which I have answered.

You have done a splendid job of demolishing a philosophical position that I do not hold.

Objectivism recognizes that for man to survive, he must have the right to the product of all of his efforts, mental as well as physical.

On this we agree.

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Okay, Im going to try to add to this debate.

Patents and copyrights are legalized monopolies on certain IDEAS. You obtain a patent or a copyright because you are scared that someone might STEAL your IDEA. So you protect yourself legally.

IDEAS are not SCARCE, in fact, any rational mind is capable of individually coming up with an already patented idea. If this is done independently, how is it STEALING? Really, I see no way that you can really steal an idea. The only way you can obtain it is by someone (the creator of an idea) giving it to you, by selling you his product.

The rational way to handle the problem of keeping people from taking an idea they cannot create independently is by creating a contract, that when one agrees to purchase an item, they may not copy it.

An example: If I buy Atlas Shrugged, and the terms of the agreement between me and the author or publishing company is that if i purchase this, I may not copy it. Then lets say I do copy and sell it. Not only can i be legally sued by Rand and her publishing company, but I can be sued by the person I sold it to, because I sold it to them under the pretenses that I wrote the book, which was fraud.

This is a way to legally handle the situation without a government enforced monopoly.

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I never said that muscles were the only necessary means for making devices, nor that the role of the mind was irrelevant and undeserving of protection. In fact, I hold that an inventor may use his property in any non-aggressive fashion to keep others from copying an invention. What he may not legitimately do, however, is employ the coercive power of the state to prevent others from manufacturing products employing their own property and the willing labor of others.
The key phrase here is "employing their own property". You continue to evade the central issue: the fact that a design is a creation that belongs only to the creator, it is his property and copying it is an unauthorized use. When they employ someone else's design without permission, they are not employing their own property.

Ownership is the exclusive right to use and disposal. The fact that a design "goes into someone's head and becomes part of their memory" does not give them the right to use and dispose of that design. Perception is not creation and does not attentuate the creator's ownership.

Looking at someone else's design is not the equivalent of conceiving and creating it in the first place. The mere fact that a design can be copied does not argue that it is okay to copy it. Property rights are not a function of the ease or difficulty of violating them.

No, this does not mean that the creator "absurdly owns part of the other persons head." The creator only owns the exclusive right to use and dispose of his design. Others may think about it, talk about it, imagine it, contemplate it, make up poems about it -- but only the creator can use and dispose of it.

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I think part of this dispute is due to a misunderstanding over the distinction between an idea (or thought) and an invention, as well as a misunderstanding of how intellectual property law is administered.

The following is an idea: “A glowing bulb that produces light from electricity would be a big improvement over a gaslight.” You cannot obtain a patent based on such a statement. It is an observation, not a creation.

Edison– through thousands of man-hours of thinking and experimenting – was able to create a specific configuration that worked: wires of a certain diameter and made of a certain material, arranged in a certain configuration, possessing a certain electrical resistance, and generating a certain current at a particular voltage, placed inside a glass globe of a specific construction, strong enough to withstand a vacuum, etc. It is this configuration, this design that can be patented.

Yes, Edison used knowledge and materials generated by others. The idea of an incandescent light was not new. In fact, an earlier patent had been issued on a light bulb, but the device was not practical. Edison purchased that patent from its owners and set-out to do it right. His efforts resulted in the first practical design for an incandescent lamp.

So, Edison does not own the idea of the incandescent lamp. What he owns is a specific configuration or design that works. If someone wishes to come up with a different design for an incandescent lamp, they are free to do so, provided it is significantly different from Edison’s. In other words, you cannot change the diameter of the wires by one thousandth of an inch and claim that you have a new design.

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The key phrase here is "employing their own property". You continue to evade the central issue:  the fact that a design is a creation that belongs only to the creator, it is his property and copying it is an unauthorized use.  When they employ someone else's design without permission, they are not employing their own property.

Just because an author–inventor “creates” something, it does not follow that he is entitled to own it. If I “create” a cure for scurvy by being the first to feed victims of the disease citrus fruits, am I entitled to a royalty from everyone who has a morning glass of orange juice? (And if you think that this is a silly example, consider this actual U.S. patent: "Method of Exercising a Cat," U.S. Pat. No. 5,443,036, Aug. 22, 1995 (shining a laser light onto the floor to fascinate a cat and cause it to chase the light).

The thought-creator-as-owner argument begs the question by assuming that an idea is ownable in the first place. Yet ideas cannot be ownable for the simple reason that they exist in the minds of men and one cannot in any practical sense have control over the content of another’s mind.

Example: if someone writes a poem and copyrights it, under the creator-owner theory he presumably owns all forms of it. Suppose you memorize the poem. If, as you say, the creation “belongs only to the creator,” then the poet would own not only his copy but also the memory of the poem in your mind -- and could, if we follow the logic of intellectual property, sue you because “copying it is an unauthorized use.” But simply reading a poem and committing it to memory is hardly the same thing as breaking into a home and stealing the silverware. Therefore, it is fallacious to treat thoughts the same as tangible goods. As Arnold Plant explained, “It is a peculiarity of property rights in patents (and copyrights) that they do not arise out of the scarcity of the objects which become appropriated. They are not a consequence of scarcity. They are the deliberate creation of statute law, and, whereas in general the institution of private property makes for the preservation of scarce goods, tending . . . to lead us ‘to make the most of them,’ property rights in patents and copyrights make possible the creation of a scarcity of the products appropriated which could not otherwise be maintained.”

Furthermore, if, as you say, “design is a creation that belongs only to the creator,” why would patents and copyrights be for limited periods of time? We do not say the owner-builder of a skyscraper should have a limited lease on his creation. The fact that intellectual property is treated as a special case in law certainly suggests that it rests on a shakier philosophical foundation than titles to tangible property.

Ownership is the exclusive right to use and disposal.  The fact that a design "goes into someone's head and becomes part of their memory" does not give them the right to use and dispose of that design.  Perception is not creation and does not attentuate the creator's ownership.

But you have already stated that with regard to a creation, “copying it is an unauthorized use.” So if we adhere to the theory that “a creation that belongs only to the creator” then the creator of a poem (or an equation or a solution or an invention) would own every instance of that creation, including not only those that those existed on paper or in three dimensions but also as thoughts. In order to defend the idea that the creator owner has authority over all instances of his creation, one has also to accept the notion that he has authority over the minds of others.

Looking at someone else's design is not the equivalent of conceiving and creating it in the first place.  The mere fact that a design can be copied does not argue that it is okay to copy it.  Property rights are not a function of the ease or difficulty of violating them.

To a certain extent they are. Theoretically, we could award property titles for the pleasure our actions give to others, so that I would be entitled to collect royalties from anyone who passes within earshot of my window when I play the guitar. After all, I “created” pleasure; am I not entitled to the fruits of my labor? Of course, the difficulty of collecting such royalties would render my rights moot. Intellectual property has very similar practical difficulties. As Stephan Kinsella says, “The distinction between creation and discovery is not clearcut or rigorous. Nor is it clear why such a distinction, even if clear, is ethically relevant in defining property rights. . . Patent law has no moorings to objective borders of actual, tangible property, and thus is inherently vague, amorphous, ambiguous, and subjective. For the latter reason alone, one would think that Objectivists -- ardent, self-proclaimed defenders of objectivity and opponents of sub-jectivism -- would oppose patent and copyright.”

No, this does not mean that the creator "absurdly owns part of the other persons head."  The creator only owns the exclusive right to use and dispose of his design.  Others may think about it, talk about it, imagine it, contemplate it, make up poems about it -- but only the creator can use and dispose of it.

But if you have memorized someone’s copyrighted poem without his permission, you most certainly have violated the poet’s “exclusive right to use and dispose” of his creation. Thus arguments for intellectual property ultimately result in the absurdity of owning other’s thoughts. After all, if some property can be regarded as “intellectual,” mustn’t it reside in the intellect?

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Just because an author–inventor “creates” something, it does not follow that he is entitled to own it. If I “create” a cure for scurvy by being the first to feed victims of the disease citrus fruits, am I entitled to a royalty from everyone who has a morning glass of orange juice?
No, what you have in this case is a discovery -- the link between vitamin C deficiency and scurvy -- and you cannot patent a discovery. A discovery is simply the acquisition of knowledge about reality, which is not an act of creation. Intellectual property law prohibits the patenting of discoveries.

And if you think that this is a silly example, consider this actual U.S. patent: "Method of Exercising a Cat," U.S. Pat. No. 5,443,036, Aug. 22, 1995 (shining a laser light onto the floor to fascinate a cat and cause it to chase the light).
If this patent is invalid, no court will uphold it or even agree to hear an infringement case. If you do something wrong in the process of getting a patent -- such as misleading the examiner or failing to bring relevant prior art to his attention -- such things are a prima fascia case for holding the patent invalid.

The thought-creator-as-owner argument begs the question by assuming that an idea is ownable in the first place. Yet ideas cannot be ownable for the simple reason that they exist in the minds of men and one cannot in any practical sense have control over the content of another’s mind.

Example: if someone writes a poem and copyrights it, under the creator-owner theory he presumably owns all forms of it. Suppose you memorize the poem. If, as you say, the creation “belongs only to the creator,” then the poet would own not only his copy but also the memory of the poem in your mind -- and could, if we follow the logic of intellectual property, sue you because “copying it is an unauthorized use.”

Memorizing is not copying. The copyright owner owns the right to the use and disposal of all physical copies of his work. You are free to memorize, recite, etc, just not free to make and distribute copies.

When the writer of a poem publishes it, they are implicitly granting everyone the right to have it in their mind. That is the point of publishing it. But it does not follow that by granting the right to read it, we must also be granting the right to copy and re-distribute it.

The exclusive right to use and dispose of property includes the right to offer other individuals limited access to it -- i.e. by selling you this poem I grant you the right to read and enjoy, but not make and distribute copies. You are free to accept that limited offer or reject it.

Nothing here constitutes an attempt to control the content of anyone's mind.

Therefore, it is fallacious to treat thoughts the same as tangible goods. As Arnold Plant explained, “It is a peculiarity of property rights in patents (and copyrights) that they do not arise out of the scarcity of the objects which become appropriated. They are not a consequence of scarcity. They are the deliberate creation of statute law, and, whereas in general the institution of private property makes for the preservation of scarce goods, tending . . . to lead us ‘to make the most of them,’ property rights in patents and copyrights make possible the creation of a scarcity of the products appropriated which could not otherwise be maintained.”
The justification for property rights is the nature of man -- see my first post in this thread. Property rights do not arise out of "scarcity".

If the last part of that is an attempt to argue that intellectual property tends to make new products and new ideas "scarce", nothing could be further from the truth. It would be the absence of any protection for inventors versus copiers that would cause the generation of new products to dry up. What inventor is going to slave for years and spend a small fortune if his invention can be copied with impunity?

Furthermore, as I made clear in my last post, intellectual property law does not treat mere thoughts like tangible property.

Furthermore, if, as you say, “design is a creation that belongs only to the creator,” why would patents and copyrights be for limited periods of time?
I have argued in this forum that there should not be a time limit. However, in skimming these long threads I believe some good arguments in favor of a time limit have been advanced -- so I need to re-examine this.

Theoretically, we could award property titles for the pleasure our actions give to others, so that I would be entitled to collect royalties from anyone who passes within earshot of my window when I play the guitar. After all, I “created” pleasure; am I not entitled to the fruits of my labor?
Indeed you are and that is the purpose of charging admission to concerts. Now, if you were in a recording studio for purposes of cutting a CD to place on sale, you would have a piracy case against someone that sneaked in and made a bootleg copy.

As Stephan Kinsella says, “The distinction between creation and discovery is not clearcut or rigorous. Nor is it clear why such a distinction, even if clear, is ethically relevant in defining property rights. 
It is “ethically relevant” because discovery does not involve creation. For man, creation is the act of re-arranging pre-existing matter into something that did not exist before. Discovery does not accomplish this.

Patent law has no moorings to objective borders of actual, tangible property, and thus is inherently vague, amorphous, ambiguous, and subjective.
It is true that the administration of intellectual property law is more complex than real property law, and in many respects more difficult. That does not make it subjective, nor does it justify the position that since doing the right thing is hard, let's do the wrong thing instead.

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No, what you have in this case is a discovery -- the link between vitamin C deficiency and scurvy -- and you cannot patent a discovery. A discovery is simply the acquisition of knowledge about reality, which is not an act of creation. Intellectual property law prohibits the patenting of discoveries.

So the cures for scurvy or tooth decay or osteoporosis or Polio could not be patented because they are “simply the acquisition of knowledge about reality.” But why, on the other hand, would the electric light bulb or a computer code or a wrinkle cream not also be considered an application of knowledge about reality? The distinction is purely arbitrary.

If this patent is invalid, no court will uphold it or even agree to hear an infringement case. If you do something wrong in the process of getting a patent -- such as misleading the examiner or failing to bring relevant prior art to his attention -- such things are a prima fascia case for holding the patent invalid.

Wait a minute. Why would courts necessarily have a higher (more just) standard than the Patent Office? Why isn’t it possible that they could have a lower standard than the Patent Office?

Memorizing is not copying. The copyright owner owns the right to the use and disposal of all physical copies of his work. You are free to memorize, recite, etc, just not free to make and distribute copies.

I see. This, of course, would overturn current copyright law. As you describe it, one could memorize Bruce Springsteen’s song lyrics and sing renditions of them over the radio and the Internet and pay Springteen zero dollars in royalties.

When the writer of a poem publishes it, they are implicitly granting everyone the right to have it in their mind. That is the point of publishing it. But it does not follow that by granting the right to read it, we must also be granting the right to copy and re-distribute it.

You have said that memorizing is not copying. Therefore, if a singer memorizes (rather than Xeroxes) a Springsteen lyric and sings it over the airwaves, he is not subject to copyright violation.

The exclusive right to use and dispose of property includes the right to offer other individuals limited access to it -- i.e. by selling you this poem I grant you the right to read and enjoy, but not make and distribute copies. You are free to accept that limited offer or reject it. Nothing here constitutes an attempt to control the content of anyone's mind.

So if I agree to your contract, I can sing your song, and someone else can listen to it -- and himself in turn sing it over AM-FM radio or the Internet and pay you no royalties. After all, the third party has made no contract with you and you would make no “attempt to control the content of anyone's mind.”

The justification for property rights is the nature of man -- see my first post in this thread. Property rights do not arise out of "scarcity".

Really? Then why should any person’s body be considered his/her own? If my girlfriend’s body is not a scarce resource then on what grounds could she object to anyone forcing her to work in a low wage job or being a sex slave or being an object of a dangerous medical experiment? Can’t she just get herself another body that hasn’t been raped or destroyed?

If the last part of that is an attempt to argue that intellectual property tends to make new products and new ideas "scarce", nothing could be further from the truth. It would be the absence of any protection for inventors versus copiers that would cause the generation of new products to dry up. What inventor is going to slave for years and spend a small fortune if his invention can be copied with impunity?

This is a utilitarian argument, not a natural rights argument. Do you wish to make the case for patents on grounds other than Objectivist principles?

Furthermore, as I made clear in my last post, intellectual property law does not treat mere thoughts like tangible property.

Great. I’ll be forbidden to seize Springsteen’s tangible property but I can help myself to as many of his thoughts as I like.

I have argued in this forum that there should not be a time limit. However, in skimming these long threads I believe some good arguments in favor of a time limit have been advanced -- so I need to re-examine this.

Please get back to us as soon as possible. We orange juice drinkers will need the know whether or not to send royalties to the estate of the discoverer of the cure for scurvy.

Indeed you are and that is the purpose of charging admission to concerts. Now, if you were in a recording studio for purposes of cutting a CD to place on sale, you would have a piracy case against someone that sneaked in and made a bootleg copy.

Why should the barrier of an admission fee or a CD price matter? You have already stated, “Objectivism recognizes that for man to survive, he must have the right to the product of all of his efforts, mental as well as physical.” That would imply that a singer has a right to revenues from ALL of the listeners to his songs. Not only would he be entitled to royalties from those who bought his CD, or a used CD, but also royalties from those who listened to his music at a block party.

It is “ethically relevant” because discovery does not involve creation. For man, creation is the act of re-arranging pre-existing matter into something that did not exist before. Discovery does not accomplish this.

What if I find that Vitamin C cures scurvy? Discovery or invention? What if it’s a combination of Vitamin C and Vitamin B1? Discovery or invention? What if it’s a combination of eight vitamins, three minerals and four amino acids? Discovery or invention? Anyone can see that that there is a continuum that makes the line between discovery and invention quite murky. To assert that so-called “inventors” should be receive vigorous IP protection while ignoring the contributions of equally industrious “discoverers” is outrageously arbitrary.

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It is true that the administration of intellectual property law is more complex than real property law, and in many respects more difficult. That does not make it subjective, nor does it justify the position that since doing the right thing is hard, let's do the wrong thing instead.

Then show why the “discoverer” of Vitamin C should receive no royalties, while the “inventor” of the method of playing with a cat by use of a laser light should be protected by patent law.

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So the cures for scurvy or tooth decay or osteoporosis or Polio could not be patented because they are “simply the acquisition of knowledge about reality.” But why, on the other hand, would the electric light bulb or a computer code or a wrinkle cream not also be considered an application of knowledge about reality? The distinction is purely arbitrary.
The distinction is simple. The design of the incandescent lamp did not exist in nature before Edison created it. The cause and cure for scurvy did exist in nature -- not everyone had scurvy, so something was already preventing it, whether it was one vitamin, five vitamins or 26 different combinations. Those who discovered or uncovered the cause did not create the arrangement.

So the distinction is that in one case one is merely identifying that which already exists. In the other case, one is creating something new, something that heretofore did not exist.

As a contrast, observe that the invention of an antibiotic -- while based on the discovery of what causes a particular disease -- is the creation of something new and is thus (potentially) patentable.

Nothing arbitrary here, outrageous or otherwise.

If this patent is invalid, no court will uphold it or even agree to hear an infringement case. If you do something wrong in the process of getting a patent -- such as misleading the examiner or failing to bring relevant prior art to his attention -- such things are a prima fascia case for holding the patent invalid.

Wait a minute. Why would courts necessarily have a higher (more just) standard than the Patent Office? Why isn’t it possible that they could have a lower standard than the Patent Office?

Patent examiners are not specialists, at least not to the level of detail in many patents. To examine the technical merits of the patent, examiners have to rely on the patent applicant, plus whatever they can read on the subject. So the level of scrutiny they can employ in examining an application is necessarily limited.

However, when an infringement action is brought to court, the first thing the judge does is set aside a period of time -- usually 6 months to a year -- for discovery. Discovery is the process by which both parties to the suit are allowed to learn EVERYTHING the other party knows about the patent and the allegedly infringing product.

Both sides hire technical experts, examine the other party's records and interview under oath the other party's key people, such as the inventor. They know everything that was said to the examiner in getting the patent, They review all of records kept in developing the product. Nothing is kept secret.

Virtually no defect in a patent survives this process. This is why the vast majority of such suits never go to trial. During discovery, the participants either learn that the patent is strong and valid -- in which case the infringer withdraws or changes his design. Or, the patent holder learns that his position is weaker than suspected and so he licenses the other party to allow him to continue marketing the product.

But the point is that the level of scrutiny brought to bear on the patent is enormous and rigorous.

Memorizing is not copying. The copyright owner owns the right to the use and disposal of all physical copies of his work. You are free to memorize, recite, etc, just not free to make and distribute copies.

I see. This, of course, would overturn current copyright law. As you describe it, one could memorize Bruce Springsteen’s song lyrics and sing renditions of them over the radio and the Internet and pay Springteen zero dollars in royalties.

No, you are not free to reproduce the work for profit. Reproducing is a form of copying.

However, I must confess that I know less about copyright law than patent law, so if someone else wants to weigh in on this part of the discussion, feel free.

The justification for property rights is the nature of man -- see my first post in this thread. Property rights do not arise out of "scarcity".

Really? Then why should any person’s body be considered his/her own? If my girlfriend’s body is not a scarce resource then on what grounds could she object to anyone forcing her to work in a low wage job or being a sex slave or being an object of a dangerous medical experiment? Can’t she just get herself another body that hasn’t been raped or destroyed?

See my first post or, better yet, read "Man's Rights" in Capitalism: The Unknown Ideal by Ayn Rand.

If the last part of that is an attempt to argue that intellectual property tends to make new products and new ideas "scarce", nothing could be further from the truth. It would be the absence of any protection for inventors versus copiers that would cause the generation of new products to dry up. What inventor is going to slave for years and spend a small fortune if his invention can be copied with impunity?

This is a utilitarian argument, not a natural rights argument. Do you wish to make the case for patents on grounds other than Objectivist principles?

No, I was responding to the criticism of the author you quoted. The case for intellectual property is moral, not utilitarian, but since intellectual property is moral it is also practical.

Please get back to us as soon as possible. We orange juice drinkers will need the know whether or not to send royalties to the estate of the discoverer of the cure for scurvy.
I have already explained that I consider the cure for scurvy to be a non-patentable discovery. So drink away!

Then show why the “discoverer” of Vitamin C should receive no royalties, while the “inventor” of the method of playing with a cat by use of a laser light should be protected by patent law.
The discoverer of vitamin C is free to invent new ways of making it, purifying it and delivering it. He can then (potentially, if he meets the requirements) get a patent on those methods or processes. But others would be free to invent alternative ways of accomplishing the same end.

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The distinction is simple.  The design of the incandescent lamp did not exist in nature before Edison created it.  The cause and cure for scurvy did exist in nature -- not everyone had scurvy, so something was already preventing it, whether it was one vitamin, five vitamins or 26 different combinations.  Those who discovered or uncovered the cause did not create the arrangement.

Your statement is contradicted by existing patent law. Since the 1970s scientists have been patenting the gene sequences that they discover for various proteins.

So the distinction is that in one case one is merely identifying that which already exists. In the other case, one is creating something new, something that heretofore did not exist.

The distinction is not always clear cut. It is a law of nature that certain elements can be positively or negatively charged. It is also a law of nature that when a negatively charged element is connected with a positively charged element, electricity is produced. Thus, the “creation” of electricity and batteries and generators is not something entirely new. Even the U.S. Supreme Court has admitted that “[t]he specification and claims of a patent . . . constitute one of the most difficult legal instruments to draw with accuracy.” Topliff v Topliff, 145 US 156, 171, 12 S.Ct. 825 (1892)

More importantly, even if the distinction were always obvious, why should Objectivists seek to reward inventors and not discoverers? Earlier you argued that inventors deserve “consideration or protection.” But why shouldn’t the same consideration and protection be extended to discoverers, whose intellectual achievements are equally important? Pierre and Marie Curie spent years and made great sacrifices to their health to discover radium. Why would they or Einstein or Newton be less deserving of consideration than the patent owner of the method of using a laser to play with a cat?

As a contrast, observe that the invention of an antibiotic -- while based on the discovery of what causes a particular disease -- is the creation of something new and is thus (potentially) patentable.

Nothing arbitrary here, outrageous or otherwise.

Of course it’s arbitrary. The gene that leads to an increased risk for cancer may reside in your body, but you must pay fees to the biotechnology company that owns the right to that genetic sequence in order to see if you have it. Yet, in In re Trovato, 33 USPQ2d 1194 (Fed Cir 1994), the inventor of a new and useful way to calculate a number representing the shortest path between two points was not given patent protection.

Patent examiners are not specialists, at least not to the level of detail in many patents.  To examine the technical merits of the patent, examiners have to rely on the patent applicant, plus whatever they can read on the subject.  So the level of scrutiny they can employ in examining an application is necessarily limited. . . .But the point is that the level of scrutiny brought to bear on the patent is enormous and rigorous.

That’s a laugh. So rigorous is patent law that something as obvious as swinging sideways can be patented: http://patft.uspto.gov/netacgi/nph-Parser?...RS=PN/6,368,227

No, you are not free to reproduce the work for profit.  Reproducing is a form of copying.

Then an author would have the right to forbid a reader from memorizing his words. Memorization is just another form of reproduction. Thus, IP does indeed mean mind control. And, by the way, the profit motive of the person doing the copying is irrelevant in copyright law. I cannot legally scan Atlas Shrugged and post it on the Internet for all to read free of charge.

No, I was responding to the criticism of the author you quoted.  The case for intellectual property is moral, not utilitarian, but since intellectual property is moral it is also practical.

You had earlier argued, “It would be the absence of any protection for inventors versus copiers that would cause the generation of new products to dry up.” If the case for patents is based on man’s nature, the number of new products that are produced or not produced is irrelevant to framing an ethical legal code.

I have already explained that I consider the cure for scurvy to be a non-patentable discovery.  So drink away!

And I should similarly feel free to violate the absurd proprietary claims of the biotechnology company that “owns” the genetic sequence for likelihood of cancer.

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Tom Robinson,

Current US patent law, as with all current US law, might not happen to be objective. The fault for the exploitation of non-objectivity does not lie in an objective theory of law, but elsewhere.

Complexity and objectivity are not mutually exclusive phenomena.

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