Intellectual Property: A Thought Experiment

Political Philosophy
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21

I don’t quite understand what you mean. How would you propose figuring out if IP really does follow from principles of property rights?

The same way we establish what rights ought to be in general. By looking at what kind of principles protect man’s freedom to engage in self-sustaining action, on whatever scale his skill and intellect allow for.

I said this above too, but it was in a way too long post, so I’ll just post it again here: The question is does IP serve that purpose, or stifle it? I think that’s an easy question to answer, and Ayn Rand answered it by noting that the most fruitful, important kind of self sustaining actions are intellectual in nature. We must protect them before anything else, if we are to thrive.

My thought experiment is meant to be useful in the sense that if one has a strong case for IP, then figuring what Franz may or may not do about Franz should be easy. Since “it’s just obvious” is not acceptable, the questions I started out with in this post are also important. The point isn’t to deduce an answer from a single case, but to make it easier to think about philosophical questions.

Ok, I think I see what you mean. So, then, the thing to show in this case is that Franz, by designing a piano and sharing his design with others, for a price, is engaging in life sustaining action. But, if Wolfgang is just allowed to buy Franz’s piano, copy it, and then build the same design without Franz’s permission, then Franz’s ability to design pianos for a living is stifled. Wolfgang is not engaging in life sustaining action, he is in fact a parasite, taking away from Franz’s ability to create.

From this case, and cases like this, through induction (not deduction), one can then establish that such a state of affairs stifles innovation. One can also establish that a system of government which allows Franz to protect his design, and sell it exclusively, would allow creative people like Franz to live a fully creative, productive life.

That is the way in which the example is relevant. Obviously, that’s not the end of the story. There’s still a long way to go towards establishing that the right way to protect Franz and people like him is the kind of framework of laws we have in place today protecting copyright, patents, etc. But we did at least establish that the desired outcome is to allow Franz to reap the full benefits of his intellectual work, and that the only way that can happen is if he has the exclusive right to sell his pianos (but without abusing his ownership of the design to achieve some goal other than just this specific one - i.e. without gaining the ability to block innovation by buying up a million patents and sitting on them).

Then, we must design a system of laws protecting intellectual property that achieves this desired outcome, but does nothing else.

22

So, instead of constraint, I should say “privileged use constraint”. Property must at least be definable in terms of use. Land can be defined in terms of square acreage, or natural borders (rivers, mountains), etc. A basketball’s privilege use is its distinctness as an entity. If IP is valid, how should one define its privileged use?

As for “some degree of value”, I just wanted to convey that property is worth something to someone, in a realizable way. Look at Alpha Centauri as many times you want, but you can’t claim it as yours for looking at it first. You can value Alpha Centauri as a nice star to look at, but nothing about the star itself can be traded, harvested, invested, built up, etc. There isn’t even a way to get there, any more than there is a way to attain any value out of a time machine, or warp drives. After writing this, I see how “degree of value” isn’t useful as a term here. I don’t know a better term right now, but this explains what I’m referring to.

I think it’s OK to look at this issue (of privileged use, if that’s what you want to call it, or of “does it generally achieve the desired outcome of rewarding the productive individual with the fruits of his labor”, the way I put it - pretty sure we mean the same thing) when determining what kind of political principles are moral. Meaning, it’s OK for philosophers to look at this issue this way. Principles aren’t intrinsic, after all, they just serve the purpose of achieving some goal, in reality. The right goal is, of course, allowing individuals to fully engage in life sustaining action.

But the government can’t look at it this way once the principles are established, to judge individual cases. We can’t just have city councils or even Congress decide to introduce “eminent domain” (a totally un-principled method of the government simply circumventing private property and replacing it with central planning) or having the patent office decide which individual patents are awarded to whom based on their opinion of who’s better suited to use it. We must have a government that follows principles, rather than pragmatically evaluate cases based on nothing but value judgments (evaluations).

23

But specifically on these forums, the poster Harrison Danneskjold was making the claim in the “IP with feeling” thread, I think (I have trouble understanding him sometimes.)

 I was, and still do, maintain that IP is the ownership of ideas.  =]

 

But as has been accurately pointed out, property rights are the right to action- you do not have the right “to” any object which you own; you have the right to DO something with it.  And accordingly, intellectual property (in the form it’s conceived of, here) isn’t the right to someone else’s thoughts or ideas, or any of their brain chemistry.

 

If you claim to own a piano, you claim the right to use that piano.

If you claim to own the IDEA of a piano, you are claiming the right to build such a piano.

 

Therefore, when we say that Franz owns his piano design, what we mean is that he owns the right to act on it.  This is the ownership of ideas- specifically the right to act on them.

 

 

Should Franz have the right to bring Wolfgang to court if he so chooses?

 One must ask why.  If Franz never discovered Wolfgang’s illicit piano, would his rights still have been violated?  This relates to the other thread, but when we reached this point before I sort of mentally wandered off for a while.

But this is specifically how it relates to it: if person A drops a penny on the sidewalk and forgets about it, and then person B picks it up later, is that theft?

Bear in mind that the right to property is the right to action.

 

So how have Franz’s rights been violated?  He still owns all of his material possessions.  He has not been harmed or interacted with in any way, shape or form.  If he hadn’t heard the music, how could he have ever learned of this crime which has been committed against him?

So what would he sue Wolfgang FOR?  Theft- of what?  The right to create that type of piano?

 

If we accept this then Franz and Wolfgang are playing a zero-sum game; the success of one necessarily entails the loss of the other (as far as pianos go).

 

 

I’m using this thought experiment to ask specific questions I’ve been thinking about. As I suggested earlier, but this time directed at anyone reading: At which point do you agree or disagree? Do you disagree on how I described property? Do you disagree about the *reason* I said Theseus would still own the same ship? How does my thought experiment change when you take away the immediately concrete re-building and use a *duplication* instead? Answer any or all of these questions. 

 I disagree on your description of property.

Property rights are the right to create and use property; what you assert that Franz owns is not specifically the piano, but the very right to build it.

 

How can one translate the right to produce an object into the right to produce an entire type of objects, as such (a sort of metaphysical-essence ownership)?  That’s what I don’t get.

 

If you could clarify that for me then the rest would logically follow.

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Of course, if we clarify that then there’s still the first-discoverer doctrine (which I disagree with) but I understand that and know where I stand on it.  At this point, I think we could figure all of that aspect out with minimal time and effort, if we so chose.

 

With respect to your scenario, I do not understand how Franz’s right to build his piano translates into a right to prevent Wolfgang from such.  I disagree with other parts as well but they’re secondary; if you could explain that then the rest would follow.

25

So how have Franz’s rights been violated?  He still owns all of his material possessions.  He has not been harmed or interacted with in any way, shape or form.  If he hadn’t heard the music, how could he have ever learned of this crime which has been committed against him?

Maybe that day, nothing at all would happen. The next year even, perhaps nothing. But if there are piano making competitors, then realistically, there is possible economic loss, including the piano Wolfgang made. Indeed, if Franz didn’t *know* anything, then it really doesn’t matter. However, we’re talking about when Franz does know. Realistically, any discussion on rights presumes someone finds out about a violation and can demonstrate a loss that hinders life sustaining action. All Franz did was show Wolfgang the blueprints, presumably in excitement, perhaps believing nothing would happen or that Wolfgang wouldn’t build the piano. A contract isn’t necessary, for example, to loan you a bike, although if you sold the bike or otherwise made a profit from my bike, I’d probably have the legal right to take you to court. In the same way, I’m saying that looking at a blueprint does not mean it is permissible to go make the piano and profit from it. At the very least, Franz should have a legal right to ask for compensation of some kind for the profit he would have asked for, at least through court proceedings. To add onto the story, or background for Franz, if he had just began selling pianos within a month for $500, do you think he has a legal right to be compensated for those $500 Franz would have asked for?

 

The question to ask is more about what defines a product of one’s thinking and efforts. Is the idea behind the blueprint a product? Without a blueprint, I’d argue it wouldn’t be a product, and only a product in the sense of figuring out a math problem. What Franz has is a creation, taken from research and being able to make a product, more than just figuring out an abstract solution.

 

(By the way, I say IP is ownership regarding *some* ideas, but IP is not ownership of *merely* ideas. It’s not a major point, but it’s there.)

26

 I was, and still do, maintain that IP is the ownership of ideas.  =]

 

But as has been accurately pointed out, property rights are the right to action- you do not have the right “to” any object which you own; you have the right to DO something with it.  And accordingly, intellectual property (in the form it’s conceived of, here) isn’t the right to someone else’s thoughts or ideas, or any of their brain chemistry.

 

If you claim to own a piano, you claim the right to use that piano.

If you claim to own the IDEA of a piano, you are claiming the right to build such a piano.

 

Therefore, when we say that Franz owns his piano design, what we mean is that he owns the right to act on it.  This is the ownership of ideas- specifically the right to act on them.

Whaa…? Sorry man but that literally made no sense to me. If ownership refers to the right to dispose of something, then it having a right “to” own something is a right to action, so what is the difference between that and having the right “to” an object in your mind? Rand’s emphasizing the right to action was in differentiation to welfare rights, so I have no idea the difference here.

 

No one challenges the right to build a piano per se, just whether or not someone’s intellectual creations can be property will affect whether I can build a piano with some non-consenting inventor’s designs, for example.

27

If IP is not governed by contract (in a proper Objectivist society with minimal government), then does it fall under a sort of criminal jurisdiction? 

 

I understand the criminal part of government power as arising from situations where an individual is faced with the initiation of physical force, fraud, and theft, in which case the individual has already delegated the use of force to the government, e.g. police + judicial system, to use force to prevent harm, theft, or fraud or to return stolen goods etc.  All sanctions by such a proper government can be seen as what would have been proper for the individual to do had there not been the delegation to a government.

 

Is it possible to set a standard for what kinds of things are property, what kinds of acts constitute theft, etc., on the basis of this delegated use of force principle?  i.e. think what is reasonable for the use of force first then define “property” based on that.

 

In other words: If government only has the authority to protect your property by virtue of your delegating your “intrinsic right” to use force in defence of that “property”, then by deciding what IS and what is NOT property are we not defining what, if government, were not doing its job of using force, YOU COULD use FORCE to defend?

 

In reality I think we are determining both what IS property and what you COULD use FORCE to defend simultaneously, my query is WHERE do you draw that line?  It is not one of mere academics or economics it is much more “hands on” and possibly violent!       

 

Please excuse the awkwardness this was hastily written down.

 

SL

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(By the way, I say IP is ownership regarding *some* ideas, but IP is not ownership of *merely* ideas. It’s not a major point, but it’s there.)

 Conceded.

IP, as it currently stands, doesn’t give anyone the right to charge others for reminiscing or fantasizing.

 

 

Realistically, any discussion on rights presumes someone finds out about a violation and can demonstrate a loss that hinders life sustaining action.

 Agreed.

And that’s exactly what it comes down to: does Wolfgang’s piano harm Franz or infringe on his right to life?

 

If I understand correctly then it deprives him of the fee he is entitled to charge for it (the so-called Free Rider problem) in which case I suspect we may implicitly accept production to be a zero-sum game.

 

 

A contract isn’t necessary, for example, to loan you a bike, although if you sold the bike or otherwise made a profit from my bike, I’d probably have the legal right to take you to court.

 Absolutely; because you would’ve deprived me of all of the time and effort spent earning that bike.  The question is whether Wolfgang has done the same.

 

 

The question to ask is more about what defines a product of one’s thinking and efforts. Is the idea behind the blueprint a product? Without a blueprint, I’d argue it wouldn’t be a product, and only a product in the sense of figuring out a math problem. What Franz has is a creation, taken from research and being able to make a product, more than just figuring out an abstract solution.

No, the idea of a product is not the same as the finished product; it is the potential, along with the raw materials for that product. 

 

The idea for a product is, itself, a form of value; the accomplishments of someone like Edison did not happen automatically and do improve countless lives in countless ways.  That much, at least, is certain.

 

But sharing your idea with someone diminishes the rewards of your labor (literally, your invention itself) not in the slightest, as opposed to physical theft, which does.  I think this warrants a distinction which is why I would disagree.

 

To add onto the story, or background for Franz, if he had just began selling pianos within a month for $500, do you think he has a legal right to be compensated for those $500 Franz would have asked for?

 Hmmmm. . . .

 

I’m not sure yet.  I feel that would change the equation somehow but I’m not sure why; I’ll get back to you on that.

However, even if we accept IP as it currently stands, Wolfgang provided the parts and the labor.  If his rights have been violated then I would consider Franz entitled to whatever portion of the finished products’ worth was directly attributable to his improved design.

 

But what if he didn’t want money?

 

Property rights imply the right to choose how to use and dispose of your own property.

If we declared that a baker could only eat his cake, and not sell it, we would be violating his rights; the same if we did the opposite.

 

So if, for the sake of argument, Franz has the exclusive right to create his own type of piano, then what if he doesn’t want to build any?

Further: what if he took Wolfgang to court, not for competing with him, but violating a right he had no intention of using?

29

No one challenges the right to build a piano per se, just whether or not someone’s intellectual creations can be property will affect whether I can build a piano with some non-consenting inventor’s designs, for example.

 That’s what I meant.

 

Does one person’s mimicry of another’s idea infringe on their individual rights?  There’s no way to conceive of it without ownership of ideas, themselves.  The closest I can come, for the sake of constructive discourse, is the “exclusive right to build something” i.e. the right to prevent others from building it.

 

 

In reality I think we are determining both what IS property and what you COULD use FORCE to defend simultaneously, my query is WHERE do you draw that line?  It is not one of mere academics or economics it is much more “hands on” and possibly violent!       

 Exactly so.

IF Franz has the right to prevent Wolfgang from building his piano, and Wolfgang has violated that right by building it, THEN Franz in fact has the right to take it back- by force, if necessary.

 

That’s why I think there’s been so much fuss over this issue, recently.

 

In defining the limits of property rights, we are actually defining what you can or cannot defend violently.  So yes, it’s sort of important.

30

 That’s what I meant.

 

Does one person’s mimicry of another’s idea infringe on their individual rights?  There’s no way to conceive of it without ownership of ideas, themselves.  The closest I can come, for the sake of constructive discourse, is the “exclusive right to build something” i.e. the right to prevent others from building it.

Well again, like DA and I were saying, sure, but that depends on what you mean by “idea.”

31

Well again, like DA and I were saying, sure, but that depends on what you mean by “idea.”

 

Fine- the right to prevent anyone else from creating a specific object or enacting a specific method.  Better?

32

Fine- the right to prevent anyone else from creating a specific object or enacting a specific method.  Better?

I mean sure, but not really cause I mean that’s kind of vague and negatively formed, that’s like saying property rights in my car is the right to prevent you from doing specific things to it. Well okay, but it doesn’t help us reach clarity.

33

In a civilized society, when is violence ever the moral response(aside from emergency) to a rights violation? IP is based on the context of a civil society, IP is meaningless to a man in isolation, the context of a rational division of labor society is the only setting were IP ‘makes any sense’.

‘Ownership of ideas, ..or ideas as such..’ most of the discussion stemming from these types of ideas seem to me to be more along the lines of floating abstractions as concerns property rights , because the idea of commerce constantly seems to be dropped.

34

In a civilized society, when is violence ever the moral response(aside from emergency) to a rights violation? IP is based on the context of a civil society, IP is meaningless to a man in isolation, the context of a rational division of labor society is the only setting were IP ‘makes any sense’.

‘Ownership of ideas, ..or ideas as such..’ most of the discussion stemming from these types of ideas seem to me to be more along the lines of floating abstractions as concerns property rights , because the idea of commerce constantly seems to be dropped.

 

In an objectivist society, use of force IS moral if: 1. it would have been moral in “pre-society” for the individual to act so, 2. THAT particular moral ability to act so IS actively being delegated to the minimal Objectivist government “post-society” and thus IS moral for the Police to act so.

 

The morality of the use of force does not depend here upon who does the forcing… if in a situation A) the police exerts the force on the “thief” or the victim exerts the force on the “thief” the morality of the use of force on the thief does not change, precisely because the police stand in as a proxy for what the individual could/should have done.

 

 

If you see me using a new fishing rod I invented to catch more fish (3x as many in the same time) and you build your own:

 

either

 

A: it is moral for me to confiscate and destroy that rod and any rod you build based on mine in perpetuity or moral for me to confiscate forcibly any and all fish you caught with it and forcibly take any and all monies you made from the sale of any fish and/or forcibly take your goats or vegetables to the tune of the amount of food you did not have to eat by virtue of the fish you caught… AND it is also moral for the police acting on my behalf to do so, OR

 

B: it is not moral for me or the police to use force in respect of anything related to the rod you build based on mine nor the fish you caught as a result.

 

The question is whether IP is an “enforceable” property right according to Objectivism.

 

 

IF we look at IP as a voluntarily adopted “custom” which is not one that is “enforceable”, then I could try to persuade others, (by letting them know you saw what I was doing and that your fishing rod was not original), not to buy fish you caught, perhaps not to deal with you.  I would suggest to my IP loving friends not to sell (not at good prices anyway) their inventions to your friends who, if they deal with you, clearly don’t respect IP.  Then on a voluntary basis, people who “chose to recognise” IP would participate and those who did not would not… although they would be doing a lot of copying.

 

SL

35

The question is whether IP is an “enforceable” property right according to Objectivism.

I started to answer this question in my OP. I explained the ways I thought that IP can be objectively defined and therefore be enforceable. I didn’t write the post to just ask about IP in general, I wrote it specifically to discuss what you are asking. What would be a right way and a wrong way to consider IP - is there anything about Wolfgang’s piano that would belong to Franz? Part of my argument is that the duplicate is still Franz’s piano based on the piano’s origins and purpose, so at the least, Franz may limit and control how that piano may be made. Yet as Nicky’s first post suggested, the proper legal response is, for example, monetary compensation, not quite confiscation of the piano that Wolfgang made. I started by explaining how I understand IP to be relatively inductively, and it seems you overlooked that important part.

36

In an objectivist society, use of force IS moral if: 1. it would have been moral in “pre-society” for the individual to act so, 2. THAT particular moral ability to act so IS actively being delegated to the minimal Objectivist government “post-society” and thus IS moral for the Police to act so.

 

The morality of the use of force does not depend here upon who does the forcing… if in a situation A) the police exerts the force on the “thief” or the victim exerts the force on the “thief” the morality of the use of force on the thief does not change, precisely because the police stand in as a proxy for what the individual could/should have done.

 

 

If you see me using a new fishing rod I invented to catch more fish (3x as many in the same time) and you build your own:

 

either

 

A: it is moral for me to confiscate and destroy that rod and any rod you build based on mine in perpetuity or moral for me to confiscate forcibly any and all fish you caught with it and forcibly take any and all monies you made from the sale of any fish and/or forcibly take your goats or vegetables to the tune of the amount of food you did not have to eat by virtue of the fish you caught… AND it is also moral for the police acting on my behalf to do so, OR

 

B: it is not moral for me or the police to use force in respect of anything related to the rod you build based on mine nor the fish you caught as a result.

 

The question is whether IP is an “enforceable” property right according to Objectivism.

 

 

IF we look at IP as a voluntarily adopted “custom” which is not one that is “enforceable”, then I could try to persuade others, (by letting them know you saw what I was doing and that your fishing rod was not original), not to buy fish you caught, perhaps not to deal with you.  I would suggest to my IP loving friends not to sell (not at good prices anyway) their inventions to your friends who, if they deal with you, clearly don’t respect IP.  Then on a voluntary basis, people who “chose to recognise” IP would participate and those who did not would not… although they would be doing a lot of copying.

 

SL

 

If situation A were to apply to two individuals in isolation , how or why would it be moral for you to act to keep me from sustainance? How would my copying of your design and utilising it be an action on my part that hinders your ‘natural’ freedom to act and catch fish? Would stopping me from copying by force, be an action by which you would gain or keep value ? I would say in that specific example that in isolation any force you would use to stop me from fishing, even with your design that I purposefully copied, would be an initiation of force, if not, against what are you retaliating?

37

‘Ownership of ideas, ..or ideas as such..’ most of the discussion stemming from these types of ideas seem to me to be more along the lines of floating abstractions as concerns property rights , because the idea of commerce constantly seems to be dropped.

 Alright.  Wolfgang builds a piano based on the schematics Franz created, and then he sells it.  Is that commerce or a crime?

 

Commerce is derivative of property rights and must come after them.  Contrary to Peikoff, I think we absolutely must drop that context (and all else following FROM the issue at hand) until the matter has been decided; otherwise we’ll be discussing two entirely separate concepts of ‘commerce’.

 

It can do nothing but bog this thread down in the hopeless confusion which has already devoured several others.

 

 

If situation A were to apply to two individuals in isolation , how or why would it be moral for you to act to keep me from sustainance? How would my copying of your design and utilising it be an action on my part that hinders your ‘natural’ freedom to act and catch fish? Would stopping me from copying by force, be an action by which you would gain or keep value ?

This is entirely true.  But I find no fault with the hypothetical, itself.

 

Strictly Logical is entirely correct in his assessment.

38

These may well be neglected aspects worthy of inclusion of the ongoing analysis and/or thought experiment.

 Company X is guilty of theft (regular, old-fashioned theft) and liable for any and all damages incurred by its meddling.

 

Eiuol, are you familiar with the “free rider problem”?

 

Is Franz limited, in excersizing his ownership, to asking for monetary compensation?  If so then this is implicitly based on that concept.

39

I started to answer this question in my OP. I explained the ways I thought that IP can be objectively defined and therefore be enforceable. I didn’t write the post to just ask about IP in general, I wrote it specifically to discuss what you are asking. What would be a right way and a wrong way to consider IP - is there anything about Wolfgang’s piano that would belong to Franz? Part of my argument is that the duplicate is still Franz’s piano based on the piano’s origins and purpose, so at the least, Franz may limit and control how that piano may be made. Yet as Nicky’s first post suggested, the proper legal response is, for example, monetary compensation, not quite confiscation of the piano that Wolfgang made. I started by explaining how I understand IP to be relatively inductively, and it seems you overlooked that important part.

 

I will admit I literally overlooked your explanation as to what you “understand IP to be relatively inductively”, and jumped in with what I thought was most pertinent (to my mind).  I will go back and read your analysis. 

 

 

In the meanwhile I wonder:  do we not all believe that government “is force” (properly delegated)?  That anytime anything at all which is not voluntary in a society, is caused by actual or the threat of the use of force?  I was under the impression this was a basic tenet of Objectivist politics.  ( I love Yaron Brook’s debate with Miles Finch? on the Proper Role of Government see Youtube) 

 

IF Franz has the right to retaliate of course that force is moral (as would the action by government he has delegated to them) but that does not change its nature.  As such “monetary compensation” is window dressing… if Wolfgang simply refuses to pay and continues to play the piano… force will be used by the authorities to separate him from it, or him from his money…  this is what I mean by “enforceable”.

 

If society chooses not to force him then IP is in that society is not “enforceable”.  In which case I would say it has not been given the status of a property right but a voluntary “custom”. 

 

I’ll take a look at your post Eioul

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If situation A were to apply to two individuals in isolation , how or why would it be moral for you to act to keep me from sustainance? How would my copying of your design and utilising it be an action on my part that hinders your ‘natural’ freedom to act and catch fish? Would stopping me from copying by force, be an action by which you would gain or keep value ? I would say in that specific example that in isolation any force you would use to stop me from fishing, even with your design that I purposefully copied, would be an initiation of force, if not, against what are you retaliating?

 

These are precisely the kinds of questions one needs to ask when deciding the status of inventions, ideas, written works etc.

 

I ask this, if Don knows Jack would love to copy his fishing pole, and wants to trade with Jack for that design… why doesn’t Don keep it secret from Jack, make a contract with Jack before hand with some clever use, license or sale provisions to their mutual benefit.  (not zero sum of course both parties benefit) e.g. Jack pays Don fish for every 3 he catches (which is three times what he normally would have caught).  If Don’s invention turns out to be better than originally advertised (originally say at 3x better) then Jack ends up keeping a larger proportion of the fish he catches.  If Don’s invention turns out to be much worse… Jack simply does not use it and owes Don no fish at all. 

 

Additionally, one of the terms of the contract between Don and Jack is that Jack must keep the invention secret, and only Don can contract with others directly in the same way he and Jack had.