Intellectual Property: A Thought Experiment

Political Philosophy
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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.

 

You have no idea how much I agree!

 

For the clever contract, it would have to stipulate the standards of the idea (which is at that point a secret) and the amount to be paid for it IF it satisfies such standards, because otherwise it would provide no mechanism to defend oneself from fraud.

So something like:  “Jack will pay Don $X upon learning of his idea, if it satisfies requirements Y and Z.”  Insert anything else in place of X and Y; it would still function the same.

 

And if so then there is no need to invoke IP, there is no need for any of this mess; it is all simply and effortlessly reducible to standard contractual obligations.

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And if so then there is no need to invoke IP, there is no need for any of this mess; it is all simply and effortlessly reducible to standard contractual obligations.

I addressed this earlier when I said that you don’t need to write up a contract to find someone accountable for using your property, like I mentioned before about loaning a bike. If they ruin your bike, or otherwise infringe upon your ability to use it, then it’s sensible to say that regardless of any contract, you can legally demand compensation. Contracts alone are fine for special agreements between two parties, but violating rights is not dependent upon a contract in place that can be violated. Slavery for instance is a rights violation even with a contract; theft (or blameworthy damage) of a bike is a rights violation even without a contract. Contracts may or may not be a matter of custom within a society, but questions of property rights or any other rights are never a matter of custom. I’m saying that IP is far more important and fundamental to one’s flourishing than say, what clothes your employer requires you to wear as a contractual agreement.

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Indeed the whole “IP as contract” argument, for example given in Rothbard, is quite limited in scope. Contractual copyrights only bind the parties to the contract, and not any third parties, they do not afford the protection of real rights given by IP law. If Franz makes a contract with Wolfgang to reserve his right to copy his piano, but does not have a contract with Ivan, then only Franz’ property right in the piano design will prevent Ivan from copying it (and will make Franz’ contract with Wolfgang unnecessary.)

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If they ruin your bike, or otherwise infringe upon your ability to use it, then it’s sensible to say that regardless of any contract, you can legally demand compensation.

 Yes, because. . . ?

 

 Think of it this way. 

 

Suppose we were roommates who shared a communal living room.  Suppose further that you take great care to keep that room immaculate, each and every day, and that one day I come barging in tracking mud everywhere and ruin all of your hard work.

This directly corresponds to the Objectivist concept of property rights- the products of your time and effort are out-of-bounds to others’ interference.

 

(And if there’s something wrong with this conception then please correct me.  This was how I originally got a firm grip on the idea and now, whenever I find myself in doubt, I visualize someone wrecking a tidy room and the subsequent wrath incurred.)

 

So extending this a bit further, suppose I come in one day to find you busily cleaning away, and I just sort of mention a far superior way of tackling the problem.  And then, after realizing that I am right once more, you might thank me and begin to act on that idea.

 

Using this analogy, would I have any right to prevent you from doing so?

 

Does Franz have the right to prevent Wolfgang from building a piano OR, if he has already done so, to defend that right retroactively by destroying it?

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 Incidentally, this relates to the Ship of Theseus because of concept-formation.

 

Physical property rights are easy to define.  If you want to know what my car is, my house, my laptop computer or anything else, I can point at it ostensibly and declare: “This!”  Physical property is easy to define because it is perceptual.

 

Intellectual property is conceptual in nature; you’re distinguishing one GROUP of things from another group which, while not simply arbitrary, lends itself to a whole host of issues.  Where does one concept end and another begin?  What about borderline cases?

 

If one were to seriously attempt to define the rules of intellectual-property-designation, they would probably fill a book.  And if they didn’t then I’d call them arbitrary.

 

 

 

As to the original post, YES Wolfgang’s piano is the same as Franz’s- in the same way that one man is the same type of thing as another man (if you omit enough measurements).  Now, if I understand you correctly, you’re advocating that Franz has the right to take Wolfgang to court (or anyone else who builds such a piano) but only for a certain amount of money?

 

Quite simply- why?

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You couldn’t say “This!” about land either.

 

My main idea is that Franz should be able to take Wolfgang to court, not necessarily that demanding money is the only thing Franz can ask for. I say “take to court” because that’s what one would do for any rights violation. If at least I can say that Wolfgang’s piano is the same as Franz’ piano in a conceptual sense, and I can say that a method to produce that piano is a product of Franz’ thinking, then Franz also has the right to control the production of that piano in a conceptual sense. That might not necessarily mean outright confiscation of the piano, don’t boil it down so simply.  

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You couldn’t say “This!” about land either.

 No, you couldn’t.

But since property rights are the right to create and then to use, where does land fall into that?  You own your house because you built it and you own your fence and your neatly-mowed lawn for the same reasons; anything which you improve about your “land” is what makes it yours.

These things, which COULD be defined ostensibly, are the only things that make “land ownership” meaningful at all.

 

 

If at least I can say that Wolfgang’s piano is the same as Franz’ piano in a conceptual sense, and I can say that a method to produce that piano is a product of Franz’ thinking, then Franz also has the right to control the production of that piano in a conceptual sense. That might not necessarily mean outright confiscation of the piano, don’t boil it down so simply.  

How exactly does one control production in the conceptual sense?

 

 

My main idea is that Franz should be able to take Wolfgang to court, not necessarily that demanding money is the only thing Franz can ask for.

 Alright.

 

So what about the person who discovered the harmonic properties that enabled Franz to invent the piano that Wolfgang built [the enabling discovery]?  Every is implies an ought.

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You can’t define land ostensibly. As I said in the OP, there is no intrinsic boundary, a boundary has to be defined conceptually. I brought that point up because it’s an example of property in a conceptual sense with application to concrete objects. Controlling a piano in a conceptual sense I mean having control over conceptual aspects of production, in the same way you’d have control over land in a conceptual sense. You can do all sorts of things on your own land, but really what the point is of land is to do things on or with, not to just “have” land. Ideas of production are used just as much as land is used, and you can even define the extent of privileged use (or what I described as “range of application” at first) in terms of what the method is useful for.

 

So what about the person who discovered the harmonic properties that enabled Franz to invent the piano that Wolfgang built [the enabling discovery]?  Every is implies an ought.

That’s a discovery. It’s not a product of one’s thinking in the same sense as a method of building certain pianos. The principles of harmonics aren’t simply created.

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I have a few thoughts distinguishing those things to which western societies accept property rights may attach and those things to which they do not.

 

Property Tangible:  personal objects from pebbles to buildings and real estate,

 

Property Intangible: writings, music, performances, inventions, designs, media, forms of expression, trade marks/names

 

NONproperty Tangible:  The atmosphere, light from the sun, ocean water, ocean seabed  beyond ?200? miles of shore, planets (no matter who when or how discovered) stars other astronomical objects

 

NONProperty Intangible: Mere ideas (absent the how), purely mathematical or abstract algorithms, scientific discoveries, information per se, information collected but not arranged as a form of expression, schemes per se of doing business.

 

What I see as important for both tangible and intangibles to be property are at least one of the following: effort to bring about create or acquire the property, possession/control of the property,  usefulness/desirability - continuing commercial aspect of the property. 

 

Perhaps it would be better to describe it in the negative:  That which takes NO effort whatever to create or acquire, OR cannot be possessed or controlled, OR has NO usefulness/desirability or commercial aspect whatever, will likely not constitute property.

 

 

I think the problematic area for deciding whether an invention like the piano is “property” is the issue of possession and control.

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You can’t define land ostensibly.

 Not virgin land, without inhabitants or signs of civilization; no.  But anything you do TO the land or WITH the land will allow you to define it ostensibly.

 

I would argue that land-ownership is not ownership of the land, as such, but of whatever you build or engineer or alter or DO to it- all of which can, coincidentally, be defined effortlessly by simply pointing at it.

If land ownership is simply ownership of the land, itself, then I claim the moon (also defined ostensibly).

 

 

The principles of harmonics aren’t simply created.

And yet, neither are pianos.  Wolfgang’s piano depends on Franz’ invention, which depends on countless earlier discoveries.

 

No, the principles of harmonics aren’t simply created; they’re part of that arrangement of matter and energy which simply exists, in nature.  But you claim that Franz owns his invention, which is nothing more than the concept of some NEW rearrangement of matter and energy; why can’t scientists patent the discoveries which he depends on?

These discoveries don’t just happen, spontaneously; they require the time, thought and energy of someone who is willing to work for them.  They are a value just as much as Franz’ piano is; how could he have invented it without them?

 

The principles of harmonics would have existed in nature, regardless of any scientist’s actions. . . But without their actions, Franz would never known of them and Wolfgang would have no piano.

 

And actually, if land-ownership truly does simply mean “ownership of thus-and-such patch of dirt” then there is no possible way to exclude discoveries from the patent office.

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People create pianos. People create methods to build pianos. 

 

People do not create the laws of harmonics. People do not create facts about reality.

 

Simple as that.

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Well the upshot of it all is simply this.  Yes, Franz’ piano is the same as Wolfgang’s piano, in a certain sense- but not as actually being identical.

 

Like the Ship of Theseus, this is a borderline case of identities in which either answer (the same or not the same) is equally valid, epistemologically.  But follow the implications through.

 

If it is the same piano then it belongs to Franz and Wolfgang has, by building it without permission, stolen it; therefore it MUST be treated as the stolen property it is and confiscated immediately.  If it is the same piano then we must treat it as the same; we must treat it as if Wolfgang had literally taken it.

 

If so then Franz DOES have the right to destroy it, or to do anything else he pleases with it- it’s his piano!

 

If so then nobody may ever build an invention without the inventor’s consent- because that IS THEFT, by its identity!

Try integrating that principle; that’s as far as I got before I decided against IP.

 

That’s why I disagree, pure and simple.  I think it leads to an unreal standard of conduct which cannot be practiced by human beings on Earth.

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heh

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If so then nobody may ever build an invention without the inventor’s consent- because that IS THEFT, by its identity!

Basically. What the proper legal recourse is remains a separate topic, but yes, the principle would be that no one would ever be able to build an invention without the owner’s consent. What’s the issue with that? No one can eat food without the producer’s consent, no one can live in any house they want without the owner’s consent, etc. Property rights, by nature of being a proper basis for trade, don’t result in stifling of creativity any more than The Man is holding you down with ownership of capital, factories, etc. So, I don’t know what unrealistic standard you are talking about.

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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 this is the right way to approach the question.

 

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.

 

The action of building a piano – which is both “intellectual” and “physical” – is protected in the resultant property status of the piano. One piano built equals one piece of property.

The “action” of designing a piano alone accomplishes nothing in terms of material values, which are ultimately what we need in order to survive, and there is thus nothing to be protected. The further action of “embodying” that design in a single piano creates: a single piano. One piece of property, just as before. The property of that entire package – one piano and the design of same – is one piano.

Thus, “the most fruitful, important kind of self sustaining actions,” which are actually both intellectual and physical in nature (for those are the kinds of actions which produce pianos, as opposed to producing nothing), are already fully protected in ordinary (as opposed to “intellectual”) property rights.

And yes, it is easy to answer whether IP stifles “self-sustaining action” generally. Ayn Rand answered that question definitively when she observed that IP, held in perpetuity, would reduce production to zero. Thus a great deal of IP stifles self-sustaining action completely, and a little IP yet stifles self-sustaining action, though not as much.

 

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.

 

This is treating production as a zero-sum game, and it is wrong.  Wolfgang’s building his own piano does not harm Franz, and one man growing richer does not impoverish another.  When Wolfgang builds his piano, Franz has as many pianos as ever he did, and all of the same rights to the marketplace as before, to buy, sell or trade as he can persuade others to engage him.  Franz is not diminished.

 

If Franz proposes to make his living selling pianos to others – and thus we say that, in “allowing” Wolfgang to build his own piano, Franz’s ability to sell pianos for a living “is stifled” – it is just as well. Franz never had the right to make a living by imposing such restrictions on the freedom of others to act in service of their own lives. And if Wolfgang “got the idea” to build such a piano through observation of Franz or his creations, such that we believe that we can trace Wolfgang’s gains in this way to Franz’s efforts, that is just as well, as well.

 

In “copying” a design – building something for himself, with all of the mental and physical effort that necessarily entails, though he did not innovate it originally – Wolfgang is not a parasite at all. He is acting as all human beings do in learning from our observations of others and then putting that learning in our own service. By working to produce our own material values, we do not act as parasites, but we are the very soul of productivity.

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in #55 DonAthos said

The action of building a piano – which is both “intellectual” and “physical” – is protected in the resultant property status of the piano. One piano built equals one piece of property.

The “action” of designing a piano alone accomplishes nothing in terms of material values, which are ultimately what we need in order to survive, and there is thus nothing to be protected. The further action of “embodying” that design in a single piano creates: a single piano. One piece of property, just as before. The property of that entire package – one piano and the design of same – is one piano.

 

 

This is an example of  the line of reasonning I question when discussing the validity of IP in a rational division of labor society and why it seems that this line blanks out on integrating the idea of commerce.

 

If simply designing a piano renders no material values, does this apply to ‘design’ as such? have architects hoodwinked us all? If you pay someone (give them material value, trade )  to design a building but all you receive is a value-less design haven’t you been taken advantage of?

Or is the mental effort of applying knowledge to a problem and creating a solution a recognizable ‘thing’? If it is a ‘thing’ in this sense , then can we not apply principles such as rights in property to it? Or does the lack of physicality remove it from the realm of materail value, that no individuals could mutually decide on a monetary value in order to trade for a purely ‘mental’ product?

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If simply designing a piano renders no material values, does this apply to ‘design’ as such? have architects hoodwinked us all? If you pay someone (give them material value, trade )  to design a building but all you receive is a value-less design haven’t you been taken advantage of?

 

There can be value in a thing that is yet not property, or material. You trade value for value with an architect – and the blueprints themselves would certainly be property, if that is at issue – just as I may pay you for any conceivable value, such as your company, or your advice, or etc., even if none of this falls under any proposed property or “intellectual property” scheme.

Trade does not alone have to be among material values.

 

Or is the mental effort of applying knowledge to a problem and creating a solution a recognizable ‘thing’? If it is a ‘thing’ in this sense , then can we not apply principles such as rights in property to it? Or does the lack of physicality remove it from the realm of materail value, that no individuals could mutually decide on a monetary value in order to trade for a purely ‘mental’ product?

 

Property is a very specific category of thing, with its own attendant rules and implications. It does not apply to “anything which may be valued.” Between us, we could certainly decide on a monetary value (or a non-monetary value) for any exchange whether of material or non-material or some combination between the two. I could sing you a song for your smile. But you would not therefore own smiling, or have the right to demand that no other man may smile as you do, because that’s how you plan on making your living, or possess any other “property” in your smile in any way that we otherwise recognize such things (notwithstanding the fact that your lips are your own, and so forth, which is comparable in the present discussion to the observation that you “own” the chemicals in your brain that allow for the idea of the piano in your mind).

 

We all of us possess, trade, and trade for, a great many valuable things that are not property.  What is more, we create and give away (!) value for which we have no proprietary interest, and for which we may demand no legal compensation, all the time.  It may be the case that my handsome face is the thing that inspires a woman to the heights of her art – and it may well be that without having seen me, and without my efforts to become the handsome devil that I am – her art would not exist.  Yet her art is her own, and I have no stake in that art qua property.  (Whether she “owes” me anything at all, in justice, is another consideration.  We may also consider whether, when you play the piano, you owe anything to all of the thousands of men whose innovations, large or small, amounted to the instrument we have today, and what precisely you owe them, but that is a separate issue and conversation.)

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The action of building a piano – which is both “intellectual” and “physical” – is protected in the resultant property status of the piano. One piano built equals one piece of property.

The “action” of designing a piano alone accomplishes nothing in terms of material values, which are ultimately what we need in order to survive

What’s the difference between “ultimately need” and just plain need?

The answer is, nothing. There can not possibly be any difference. You either need something to live, or you don’t. If there’s a set of things that you need to live, than the only thing you could possibly need anything less for is to die. Saying that there’s a set of things that you “ultimately need” to live, that’s different than the set of things that you need to live, is a contradiction.

So, if you know there’s no difference, why did you use “ultimately need”? I’ll answer this question too: to avoid having to prove me wrong on my claim that I need the products of my intellectual work to survive. Don’t make false distinctions to avoid the issue. Do men need the products of intellectual work to live? Yes or no?

And yes, it is easy to answer whether IP stifles “self-sustaining action” generally. Ayn Rand answered that question definitively when she observed that IP, held in perpetuity, would reduce production to zero. Thus a great deal of IP stifles self-sustaining action completely, and a little IP yet stifles self-sustaining action, though not as much.

Ayn Rand was against IP being held in perpetuity, but not because she thought IP in general stifled productivity. It’s because she thought that IP, and property in general, when held by someone who hasn’t earned it, stifles productivity. With material possessions, that’s not an issue, since material possessions don’t last forever. If someone who hasn’t earned them holds them, they’ll just squander them, and that’s that. But it is an issue with patents and copyrights. We can’t have some asshole squandering the products of his ancestor’s intellect. (at least that was the jist or Rand’s argument, at some point - I’m not really on board with that, and she didn’t seem to stay on board long either; my position is that we can’t have anyone, original owner or not, abusing IP rights - but it’s fine to have whoever the original owner transferred ownership to, exercise those rights in their self interest, for as long as that’s possible and practical)

Anyway, that’s why, at one point in her life, she was against the transfer of IP: because a person who hasn’t created a product of the intellect shouldn’t be in charge of its use. She held that the intellect dies with the person, and so does the exclusive right to manage its products. At least that is something she believed at one point in her life. Clearly not at the end, when she left her intellectual property to Leonard Peikoff (and spoke in favor of current copyright laws, which last longer than a lifetime, many times). But nonetheless she did make that argument at some point.

Personally, I agree with her latter choice. I think that the creator of IP can in fact sell it, or choose another intellect to manage it. Ownership of IP can still be earned by a second party, by convincing the original creator of the merit of transferring that ownership. There should still be a time limit on patents and copyrights, but not set in stone at the time of the original owner’s death. (I mentioned what I think the criteria should be instead, in my previous posts - that might lead to shorter or longer limits than the creator’s lifespan, depending on the products in question)

Also, that quote (“IP, held in perpetuity, would reduce production to zero”) seems dubious at best. Where is it supposed to be from?

P.S. My description of “what Rand believed about the transfer of IP at some point in her life” comes from an onsourced quote on this site: http://objectivistanswers.com/questions/2147/should-intellectual-property-be-held-in-perpetuity ; I hate unsourced quotes, but it looks legit, and sound like Rand, so I’m going with it.

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What’s the difference between “ultimately need” and just plain need?

 

The difference in my use is demonstrated in that which you’ve already quoted:

“The ‘action’ of designing a piano alone accomplishes nothing in terms of material values, which are ultimately what we need in order to survive.”

If you want to talk about the importance of “intellectual labor,” as when you observed that “the most fruitful, important kind of self sustaining actions are intellectual in nature,” then I think that it’s necessary to point out that your “self-sustaining actions,” of themselves, will not suffice to sustain the self. That self-sustenance ultimately requires both intellectual and physical labor, together, for the production of material values. And this recognition calls into question (in my mind alone if not in yours) the elevation of “intellectual labor” over “physical labor” where the production of material values are concerned, or treating their supposedly separate products separately.

 

The answer is, nothing. There can not possibly be any difference. You either need something to live, or you don’t. If there’s a set of things that you need to live, than the only thing you could possibly need anything less for is to die. Saying that there’s a set of things that you “ultimately need” to live, that’s different than the set of things that you need to live, is a contradiction.

So, if you know there’s no difference, why did you use “ultimately need”? I’ll answer this question too: to avoid having to prove me wrong on my claim that I need the products of my intellectual work to survive. Don’t make false distinctions to avoid the issue. Do men need the products of intellectual work to live? Yes or no?

 

Men need material values to live. Material values are the products of both intellectual and physical labor, together, and as such they are both necessary to survive (and neither will do any good without the other). Speaking of “the products of intellectual work” separately is a fiction. Property – ordinary property, quite apart from “intellectual property” – is"the product of intellectual work," and property rights (again, apart from “patents” or “copyrights”) already serve to protect those products.

 

Also, that quote (“IP, held in perpetuity, would reduce production to zero”) seems dubious at best. Where is it supposed to be from?

 

That quote (which is in my words) is my paraphrase of Rand’s observation on IP in perpetuity from “Patents and Copyrights”:

 

If it were held in perpetuity, it would lead to the opposite of the very principle on which it is based: it would lead, not to the earned reward of achievement, but to the unearned support of parasitism. It would become a cumulative lien on the production of unborn generations, which would ultimately paralyze them. Consider what would happen if, in producing an automobile, we had to pay royalties to the descendants of all the inventors involved, starting with the inventor of the wheel and on up. Apart from the impossibility of keeping such records, consider the accidental status of such descendants and the unreality of their unearned claims.

 

When she says that such a thing would “become a cumulative lien on the production of unborn generations, which would ultimately paralyze them,” I think I am fair in recasting that as “reduc[ing] production to zero.” And I’ll also note that this paragraph seems to place the emphasis of her thoughts against IP-perpetuity upon the disastrous effects of cumulative IP, generally, rather than her subsequent observation on “the accidental status of such descendants,” or “some asshole,” as you put it, with also a nod to “the impossibility of keeping such records.”  If you continue to disagree on this point, you’re welcome to it; I think Rand’s words speak for themselves.

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the principle would be that no one would ever be able to build an invention without the owner’s consent. What’s the issue with that?

Seriously?

 

Ask yourself this: if Wolfgang had taken Franz’ blueprints, added a little detail of his own and THEN built it, does Franz still own it?  If not then there is no issue here because that razes the entire concept of IP to a friendly suggestion.

If so then no production of any sort can EVER be possible.

 

If the only moral action is truly original action; that which nobody has ever conceived of before, then no actions are possible to anyone- except perhaps flailing around in place, as randomly as possible, until hunger and fatigue induce the greatest cliché of all- death.

Name a single item or method which does not incorporate the ideas of a single other person, and then invalidate it- because you just thought of it.

 

Yes, this all runs on the assumption that the permission of the inventor will not be given, which is a rather large assumption.  It very well might be (it’s done all the time, nowadays).  But in the words of Ayn Rand:

“If, before undertaking some action, you must obtain the permission of society—you are not free, whether such permission is granted to you or not. Only a slave acts on permission.”

 

Now project the number of people whose ideas have birthed the modern computer, battery, et cetera; the number of permissions you must acquire in order to MORALLY PRODUCE ANYTHING AT ALL.

 

In short: stop and think about it.

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