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Source link: http://archive.mises.org/11323/kinsella-v-schulman-on-logorights-and-ip/

Kinsella v. Schulman on Logorights and IP

December 26, 2009 by

I previously posted “On J. Neil Schulman’s Logorights“; Schulman and I recently had an interesting exchange in the comments section of the cross-post on my blog. The original post and the exchange are appended below.On GMO patent infestation, Kent Hastings comments on my IP views and those of J. Neil Schulman. Schulman responded:

My article “Informational Property: Logorights” begins by specifically disclaiming any state grants of monopoly. The concept stands or falls on its natural-property-rights arguments. Neither Samuel Edward Konkin III or Stephan Kinsella or anyone else has ever successfully answered the challenge I raised in my article, that without the identity of a thing being real enough to make it claimable as property, there would be nothing identifiable existing to be copied in the first place.

This is not arcane. It’s just being pointedly ignored — and Kinsella’s attempts to change the subject don’t make me forget what I wrote.

My response is as follows:

Neil, I said your term “logorights” is somewhat arcane, not your theory, and there was no disrespect implied.

I think you are just wrong to assume that “having an identity” is a sufficient condition for being subject to property rights.

Consider: one has no property right the value of one’s property, as Hoppe and Rothbard have argued (see Sheldon Richman on Intellectual Property versus Liberty); and likewise, one has no property right in the “identity” of one’s property.

The reason is that owning value, patterns, identify gives you an ownership right in others’ already-owned property. Saying you own the “identity” of a thing you own is another way of saying you own the pattern by which it is arranged-which is a disguised way of saying you have ownership rights in things everyone else owns. The standard Lockean account of property accepted by most libertarians says that the person who appropriates a previously unowned scarce resource becomes its owner. The IP advocate, of which you are one, says that if A thinks of a unique way to use his property or a unique pattern to impose on his own property, this act of intellectual innovation magically gives him partial ownership rights in property already owned by others. It lets you tell B how he can use his own property, even though B is the appropriator and by Lockean principles only B should be the owner. Granting A an IP right just means some of B’s rights of control are transferred to A-it’s a transfer of wealth or property, and it’s incompatible with libertarian property rights.

The mistake Rand made was thinking “anything you create” is property, without first asking if the thing created is the type of thing that is subject to property in the first place. In fact, creation is neither necessary nor sufficient since if you create some new pattern using others’ property you are not its owner; and if you impose a new pattern on property you own, then you own the transformed thing since you already owned the stuff of which it’s made. A focus on creation as a source of ownership is the mistake made here. Creation is a source of wealth, sure, but not of ownership, since you can only create using things you already own.

Tibor Machan makes a similar mistake to your “identify” view when he assumes that many “ontological” types of things can be property-the mistake is in assuming that the way we conceptually and terminologically understand the world has some metaphysical basis that translates into property rights. By this view any concept we come up with to “identify” things that is successful, has magically created a new class of property. I find the concept “poem” useful-it is conceptually valid.. poems “have” “identity”-voila, they must be property!

I don’t agree with this way of making rights depend on what concepts we have or how we identify and understand things in the world. Just because we can call something by a word, or call it a “thing,” does not mean it is ownable. In fact, all ownership rights are enforced in physical terms against scarce resources; which means that granting rights in anything else has to undermine and dilute real rights in real things.

For a further explanation of what is wrong with Schulman’s “logorights” theory and why it is contrary to libertarian property rights, see text at notes 48-49 et pass. to my Against Intellectual Property; see also the following posts, which point out various errors in the Randian “creationist” approach to IP (and apply more or less to Schulman’s logorights idea too):

Articles:

Media:

Blog posts:

***

SCHULMAN’S REPLY:

Stephan,

Once again your reply to my Logorights argument is merely to assert that it’s false without actually refuting any of the proofs I make. All you do is say “Well Locke said this” and “Tibor Machan said that.” I don’t care. I say outright that I’m offering a new theory of property rights — and not once — not ever — have you ever dealt with it other than to say, “Well, that’s not what [insert name here] wrote!”

1) You fail to answer my challenge that material identity IS property, and that without material identity the concept of property is meaningless.

Answer this challenge from my article:

” You go into a Waldenbooks and plunk down cash for a book that says on the cover “ATLAS SHRUGGED by Ayn Rand.” You get it home … and the first sentence is, “It was the best of times, it was the worst of times.”

Now, what you bought is a book and this book has got everything that makes a book a book: a binding, hundreds of sheets of paper with printed ink impressions on it, and a cover. Let’s even pretend that the book you took home has the same number of pages, the same dimensions and weight, the same binding and style of printing as the book with the composition called ATLAS SHRUGGED. Do you have any just cause of complaint if the composition of words inside the book turns out to be something other than what the cover says? If you answer no, then you got everything you paid for. But if you answer yes, then you are saying that the composition of words makes this book a different commodity from the book you thought you were buying, and therefore you are rightfully entitled to a copy of the composition of words labelled ATLAS SHRUGGED.”

Does the difference in composition of words make an otherwise identical physical object a different thing — yes or no?

Did the buyer who expected to get a copy of Atlas Shrugged and who got a copy of A Tale of Two Cities get what they paid for — yes or no?

If the answer is yes to either of these questions, then you have conceded that the composition of words — the logos — is the sole differentia between two physical objects — and therefore the logos is what makes it a different THING.

If the logos makes these two otherwise identical objects different things then that which makes them different things is what gives them their value — and the property rights case for the logos is made.

Answer that. Answer that!!!!!!!!!

NSK RESPONSE:

Neil:

Once again your reply to my Logorights argument is merely to assert that it’s false without actually refuting any of the proofs I make. All you do is say “Well Locke said this” and “Tibor Machan said that.” I don’t care. I say outright that I’m offering a new theory of property rights — and not once — not ever — have you ever dealt with it other than to say, “Well, that’s not what [insert name here] wrote!”

I think all your theories are the same: if you “create” “value,” you have a “right” to it. This is just confused and groundless.

1) You fail to answer my challenge that material identity IS property, and that without material identity the concept of property is meaningless.

I think you are playing tricks with the Randian concept of “identity.” Saying that “the value” of a CD (say) is “in” its “logos” and therefore that it is the same as a copy of the CD proves nothing. It doesn’t prove that your discovery of a way of using or impatterning your property gives you all of a sudden a magical right to control how others use their property.

“You go into a Waldenbooks and plunk down cash for a book that says on the cover “ATLAS SHRUGGED by Ayn Rand.” You get it home … and the first sentence is, “It was the best of times, it was the worst of times.”

Now, what you bought is a book and this book has got everything that makes a book a book: a binding, hundreds of sheets of paper with printed ink impressions on it, and a cover. Let’s even pretend that the book you took home has the same number of pages, the same dimensions and weight, the same binding and style of printing as the book with the composition called ATLAS SHRUGGED. Do you have any just cause of complaint if the composition of words inside the book turns out to be something other than what the cover says? If you answer no, then you got everything you paid for. But if you answer yes, then you are saying that the composition of words makes this book a different commodity from the book you thought you were buying, and therefore you are rightfully entitled to a copy of the composition of words labelled ATLAS SHRUGGED.”

Sure it’s “different.” Being “different” does not give you property rights in the difference. And sure, you didn’t get what you paid for: you transferred title to the money on condition you received a certain book. You didn’t get what you bargained for. IP of course has nothing to do with contract. So this is all irrelevant.

Does the difference in composition of words make an otherwise identical physical object a different thing — yes or no?

Neil, of course–even if you have two “identical” copies of Atlas they are still “different things.”

Did the buyer who expected to get a copy of Atlas Shrugged and who got a copy of A Tale of Two Cities get what they paid for — yes or no?

Of course not.

If the answer is yes to either of these questions, then you have conceded that the composition of words — the logos — is the sole differentia between two physical objects — and therefore the logos is what makes it a different THING.

First, I think you got your examples confused–I think you meant if I answer yes to the first or no to the second. In any event, you wrong: the two objects are “different things” even if they have the same look, pattern etc.

If the logos makes these two otherwise identical objects different things then that which makes them different things is what gives them their value — and the property rights case for the logos is made.

What “gives them their value”? They don’t “have” value. Value is not objective, or intrinsic, or some substance. Rather, people demonstrate that they value things in their actions. I assume you agree with this.

You seem to think it is extracting some huge concession of me to get me to admit that the reason a typical consumer values a book (say) is because of what pattern it has. I readily agree to this. I value a box of paperclips more than a hunk of metal of the same weight because of the way the metal is shaped in the case of the paperclips. So what? I value a new condom more than a ripped one because of its “logos,” its material configuration. So what?

Same with a set of paints and a blank canvas. If I use my talent to apply the paint to the canvas–rearranging the logos of the paint-canvas matter into a new one–to result in a beautiful painting, I have made it more valuable–in that I can sell it for a higher price. Sure. Why? Because the buyer would prefer it to the blank canvas. Who has ever denied that transforming–rearranging–the patterns of your work makes it more valuable–to you, or to others? But this does not mean you have property right in the logos, in the pattern. That doesn’t follow.

Even Rand acknowledged most of this: as she once wrote:

The power to rearrange the combinations of natural elements is the only creative power man possesses. It is an enormous and glorious power–and it is the only meaning of the concept “creative.” “Creation” does not (and metaphysically cannot) mean the power to bring something into existence out of nothing. “Creation” means the power to bring into existence an arrangement (or combination or integration) of natural elements that had not existed before.

Of course, there cannot be property rights in value since this would have to mean property rights in arrangements or patterns, which would then give the owner of the arrangement rights in other people’s already-owned property. If Rand had kept her focus on the fact that rearranging already-existing property can indeed make that property more valuable, she would have realized that creation (rearrangement) is not an independent source of property rights: if you rearrange your own property, even if this makes it more valuable, you already owned the property that you have rearranged (made more valuable). Yet this does not give you rights in other people’s property. You can re-word the Randian view as follows: if you make your property more valuable, it gives you additional property rights–the right to prevent other people from making their own property more valuable. And this makes it all the more obviously flawed.

This is where the Misesian approach to subjectivist value makes sense: things have value to a valuer; values do not exist independently as free-floating things that can themselves be owned. And again, Rand should have recognized this; e.g., she once wrote, “Material objects as such have neither value nor disvalue; they acquire value-significance only in regard to a living being–particularly, in regard to serving or hindering man’s goals.” (For more on the compatibility between Objectivism and Austrian economics, see Mises and Rand (and Rothbard); Randian Hoppe(?), Austrian Rand(?).) So she should have realized that if rearranging owned property makes the owner or potential buyers value the object more, it does not mean there is any additional thing created for which we need to find an owner.

Answer that. Answer that!!!!!!!!!

I think I have. It gains you nothing. The fact remains that by giving people rights in “logos”–in patterns–you give them a right to control the already owned property of other people. It lets the re-homestead already-homesteaded property. This is transfer of wealth. It’s theft.

SCHULMAN:

The real-world difference between two otherwise identical books — one with the composed text of Atlas Shrugged and one with the composed text of A Tale of Two Cities — is the composition of words. These are objective differentia that can be discovered by either human readers or even machine intelligence. The compositions, as information, have different mathematical values that can be calculated.

You jump around between objective and subjective — between cognitive and normative — in an attempt to hide the difference.

It is a true statement that there are minute differences in every single object that exists. But the word “duplicate” is a meaningful term in that the essential utility of a book is to be read (yes, I know books can be used by interior decorators and also be used to hold up a broken table leg or as a paper weight) but the essential quality of a book — why human beings go to the trouble of manufacturing them — is that they are convenient means of recording and transporting the printed words, symbols, and art work on the pages.

Atlas Shrugged is identified as a distinct commodity by its words, whether they exist printed in a hardcover book, or a paperback book, or read aloud as a recording, or as bits of data stored or transmitted digitally. The entity that is Atlas Shrugged is an information object — a real-world thing — separate, distinguishable by man or machine, and valued apart from the multiplicity of physical forms on which it may be recorded or performed.

The usefulness — utility — which human beings have for this objectively and observably distinct information object — this thing — is based on the presence, intactness, completeness, and availability — of that objectively and observably distinctinformation object.

The subjective value which any human being will or will not assign to this objectively and observably distinct information object will be based on the objectively and observably distinct identity.

A human being will take action with respect to acquiring, using, keeping, or discarding that objectively and observably distinct information object because no matter how many different objects, forms, or transformations it goes through IT’S IDENTITY IS THE SAME AND THEREFORE IT IS THE SAME THING.

That which makes it a distinct thing — that which gives it distinct utility — that which makes it distinctly an object of desire by a human being’s subjective perceptions and choice — is its material identity.

That which makes it a thing makes it ownable.

He who creates it is its first owner.

Those who respect property rights must respect that if a thing can be identified as unique and different –and can be recognized as a thing created by someone — that its creator owns it.

The rest of my logorights argument uses commonly accepted theories of ownership and history of property rights transactions in the real world — to show how ownership rights in material identity can be claimed, recognized, traded, and protected — just like all other naturally occurring property rights — without the existence of the State.

At this point, Stephan Kinsella, I am writing only to your readers. I do not consider that you have any actual interest in understanding what I am writing and I think you are being what the Catholics refer to as invincibly ignorant on this topic.

Neil

NSK:

Neil,

The real-world difference between two otherwise identical books — one with the composed text of Atlas Shrugged and one with the composed text of A Tale of Two Cities — is the composition of words. These are objective differentia that can be discovered by either human readers or even machine intelligence. The compositions, as information, have different mathematical values that can be calculated.

They are not otherwise “identical”–they are two distinct books. A and B. Just as two “otherwise identical” gold coins are not the same coin. But sure, they have a similar configuration. I fail to see how this is relevant for property rights. If I see your log cabin and build an “identical one” I have stolen nothing from you. We each own our own log cabins–no matter how identical they appear or are shaped.

It is a true statement that there are minute differences in every single object that exists. But the word “duplicate” is a meaningful term in that the essential utility of a book is to be read

? I know this. I never denied this. You seem to think this is wresting some huge admission from me, as if it automatically leads to IP. It does not. So what if two objects can be described as similar or duplicates? They are still distinct things. And anyway, if having-a-duplicate somehow violated the rights of the owner-of-the-original, then …. this would cover only copyright, not patent, and it would cover only literal copying, not the bundle of copyright such as derivative works. And it would be hyper-copyright–it would never expire; and original creation would not be a defense (as it is in copyright law). And how would it cover patents? Take a method patent. There are now no similar objects. Just similar actions, say actions of one’s body. If A moves his body in such-and-such-way, now he “owns” this pattern-of-moving, and can use force to stop B from moving his own body in that way (and remember, patents are not about copying at all–A can stop B even if B comes up with this sequence of steps indendently).

Yes yes, I know you’ll say you don’t support modern patent and copyright law. You only support logorights, which is even more extreme. And though you won’t endorse patent and copyright law, you’ll condemn those who want to abolish it.

the essential quality of a book — why human beings go to the trouble of manufacturing them — is that they are convenient means of recording and transporting the printed words, symbols, and art work on the pages.

Of course.

Atlas Shrugged is identified as a distinct commodity by its words, whether they exist printed in a hardcover book, or a paperback book, or read aloud as a recording, or as bits of data stored or transmitted digitally. The entity that is Atlas Shrugged is an information object — a real-world thing — separate, distinguishable by man or machine, and valued apart from the multiplicity of physical forms on which it may be recorded or performed.

Sure, you can conceptually identify the pattern of words that is Atlas Shrugged. (Not sure you can objectively identify works that violate the copyright sub-right to make “derivative works”, or objectively justify and define “fair use” exceptions, those sorts of things.) So what? I can identify also the method of using fire to cook food, using animal hide to make clothes, using logs to make a log cabin, using a chiseled rock as a knife, and so on. So? Just because we can conceptually identify patterns does not give you ownership of these patterns.

The usefulness — utility — which human beings have for this objectively and observably distinct information object — this thing — is based on the presence, intactness, completeness, and availability — of that objectively and observably distinctinformation object.

The subjective value which any human being will or will not assign to this objectively and observably distinct information object will be based on the objectively and observably distinct identity.

A human being will take action with respect to acquiring, using, keeping, or discarding that objectively and observably distinct information object because no matter how many different objects, forms, or transformations it goes through IT’S IDENTITY IS THE SAME AND THEREFORE IT IS THE SAME THING.

Sure, people value certain works of authorship because of the patterns. But your notion that objects A and B “are the same thing” is utterly bizarre. Putting it this way is really just a complicated way of begging the question. Consider: I invent the transistor. A month later you independently invent it. Soon you and I are both manufacturing and selling these cool transistors. They are both transistors. Sure. They both use the same idea that transistors are based on. The reason people value these things is because … they are transistors. But your truck of transistors and my truck of transistors, even though they are all transistors–even if they have identical looks and characteristics–are not “the same”. There’s that truckload, and this truckload, just like you have a gold eagle and I have a gold eagle. And sure, you can say the transistors are all “the same” in some relevant sense–fine. So what? It doesn’t give me the right to stop you from making your transistors.

That which makes it a distinct thing — that which gives it distinct utility — that which makes it distinctly an object of desire by a human being’s subjective perceptions and choice — is its material identity.

That which makes it a thing makes it ownable.

He who creates it is its first owner.

This is some wild metaphysical legerdemain here. So… I can use force against you to stop you from selling transistors… that you invented … because … “That which makes it a thing makes it ownable.” and “He who creates it is its first owner.” You can’t be serious. What kind of reasoning is this?

In the transistor example above, you own your own body and various material. It already has an owner. As its owner, you have the right to use it. I don’t gain some veto-right over your use of your own property merely by thinking of a way to use my own property.

You seem to think that if we can conceptually identify a “thing,” then “it” can have an “owner”. Only ownable things can have an owner. Ownership specifies who can use a given thing. The only purpose of such a rule is if the thing can only be used by one person at a time–if use by one person excludes use by another–if the thing is a scarce resource. The libertarian rule is that for such things, to avoid conflict the right to own is assigned to the homesteader–the first user, the one who appropriates it out of the state of nature. Your rule would underming the Lockean homesteading rule by allowing “ownership” of any “thing” that you can conceptually give “identity” to… but of course, though you grant all these conceptual entities existential status, though you say they are just as real, just as ownable as material things, you of course want to enforce rights in these ephemeral ontological ownable things in the real, physical world. If I “steal” your “ideal object” or “informational object” by … using my own property in certain ways, then you want to use physical, real force (not merely “informational force”) against my real, tangible body or my real, tangible property (say, my money) to stop me or penalize me. When the rubber hits the road, IP advocates always turn to the real world of scarce things and real force to enforce their rights to the “informational objects” floating around up there in the Platonic realms.

Those who respect property rights must respect that if a thing can be identified as unique and different -and can be recognized as a thing created by someone — that its creator owns it.

Your mistake is in assuming that any “thing” can be owned. There are an infinite number of “things” out there–the human mind can conceptually understand the world in any number of ways. My love for my poodle “exists”. The fact-that-the-earth-rotated-today exists. My ability-to-jog exists. Poems exist. Crime exists. There “are” facts. I “have” memories. Perfume scents “exist.” Physics equations and mathematical algorithms “exist.” The method of long division is a “thing”. It is obviously ludicrous to assert that just because I can define or name or conceptualize a “thing” that it does, or even can, have an owner. We do not even get to the question of “who owns that thing?” unless the thing is an ownable thing. Not all things are ownable things. What is ownable? Only scarce resources. Information is not a scarce resource. You and I can both use the transistor-idea at the same time.

SCHULMAN:

I have already asked and answered every point you raise once again. You fail to address my challenges and attack straw men.

I leave it to your readers to read my article “Informational Property: Logorights” — and all you can muster against it — then decide for themselves.

I’m done exhausting myself re-answering the same refuted points endlessly.

{ 75 comments }

MichaelM January 2, 2010 at 1:08 pm

@ Jay L

“From your definitions, I can conclude the following:
… as well as any product of the reason and effort of others acquired in a voluntary exchange.”

Subject to the terms of the exchange, of course.
———————–

“Can an intangible entity ever be altered?”

In the present context, the intangible entity is a mental integration, and yes, it can be altered.
———————–

“More precisely, when one “rearranges” an intangible entity, are they really rearranging it or are they simply discovering new arrangements while leaving the orginal intact?”

Rearranging it and the original remains. But no part of a rearrangement may be regarded as new that substantially retains the form and/or meaning of any part of the original arrangement.
————————

“When an intangible entity is communicated to another person, is it removed from your possession or does it simply multiply?”

It multiplies.

In the case of a novel, one purchases the right to duplicate the mental integration by accessing it from the particular concretization of it that is owned, but not the right to duplicate it by means of any other concretizations of it.
———————–

“Can an intangible entity be removed from your possession?”

A lobotomy would do the trick. But it could be reestablished from a concretization of it.
—————————

“Can an intangible entity ever be destroyed?”

Yes. Mental integrations can vanish if all concretizations are lost or destroyed and knowledge of them is not passed to subsequent generations.
—————————-

“After answering these questions, can you please comment on whether “ownership” is actually the correct word to describe what you’re advocating.”

There is ample evidence in my comments that I think it is. If you have an alternate word to suggest, please share it and your reasons why.

Bala January 2, 2010 at 2:23 pm

MichaelM,

” What is it about man’s nature that necessitates the concepts of right and wrong that would require a man to abstain from the force all other living entities employ even if he were the most powerful of his species? ”

I could answer this by saying that it is fundamentally the fact that man is capable of forming concepts of time, is capable of projecting in time and is therefore capable of acting and does act for the long-range and not just for the range of the the moment and get into more discussion on related issues. However, that is not the point in the discussion we have had till now.

Nothing that comes out of that discussion addresses or negates the charges I levelled against you on account of your rebellion against nature as reflected in your readiness to insist upon exclusivity of ideas & patterns, an exclusivity neither permitted by their very nature nor necessary to secure a man’s freedom of action on one (an idea/pattern) he has produced.

Hence, your stand on IP still remains immoral as it is a product of evasion of reality and whim-worshipping unless you are ready to prove otherwise.

Bala January 2, 2010 at 2:32 pm

MichaelM,

” If you have an alternate word to suggest, please share it and your reasons why. ”

“Possession” is the right word because you can have it but once it is released in some physical form such as a device or a book, you are no more capable of excluding others from it. In fact, no one else who “buys” the physical instantiation from you can prevent you from possessing it either.

In effect, there is no meaning in using the term “ownership” with that from which you have no power to exclude others.

Jay Lakner January 2, 2010 at 8:14 pm

MichaelM.

As Rand puts it, “to be conscious is to be conscious of something,” so that an objective reality independent of consciousness must exist for consciousness to be possible. Objectivism holds that the mind cannot create reality, but rather, it is a means of discovering reality.

Yet you are treating intangible entities as though they only exist in the human mind, that they are not an aspect of objective reality. This is contrary to the starting premises of Objectivism.

The logical conclusions of Objectivist premises is that a human mind does not need to exist for an intangible entity to exist.

You wrote:
“In the present context, the intangible entity is a mental integration, and yes, it can be altered.”

When a human mind “thinks” of an intangible entity, all that is happening is that the intangible entity is manifested in the tangible materials of a human brain. The human has discovered the reality of a possible arrangement of tangible materials.

Hence, an intangible entity is nothing more than a possible arrangement of tangible entities.

Therefore:
- All intangible entities are simply patterns or forms that tangible entities can be arranged in.
- The definition of an intangible entity is a possible arrangement of tangible materials.
- These possible arrangements exist independent of the existence of a tangible manifestation of them.
- These possible arrangements exist independent of the existence of a person to “think” of them.
- Therefore, intangible entities cannot be altered, created or destroyed.

If you believe otherwise, that’s fine. But denying that intangible entities are a feature of objective reality probably disqualifies you from being called an Objectivist.

Stephan Kinsella January 2, 2010 at 9:05 pm

Jay,

When a human mind “thinks” of an intangible entity, all that is happening is that the intangible entity is manifested in the tangible materials of a human brain. The human has discovered the reality of a possible arrangement of tangible materials.

Indeed. As I noted in Rand on IP, Owning “Values”, and “Rearrangement Rights”, Rand once wrote:

The power to rearrange the combinations of natural elements is the only creative power man possesses. It is an enormous and glorious power–and it is the only meaning of the concept “creative.” “Creation” does not (and metaphysically cannot) mean the power to bring something into existence out of nothing. “Creation” means the power to bring into existence an arrangement (or combination or integration) of natural elements that had not existed before.

Bala January 3, 2010 at 12:44 am

Stephan,

I went through the article ‘Rand on IP, Owning “Values” and “Rearrangement Rights” ‘. I specifically went through the portion that highlights David Kelley’s explanation on the legitimacy of IP.

The problem as I see it is not even in the portion you have highlighted (“regardless of scarcity”). In fact, that statement in itself is an outcome of an inversion of cause effect relationship in an earllier statement where he talks of “the right to exclude”.

Frankly, the “right to exclude” is by itself nothing more than a recognition of the condition of existence that for man to act his values in the service of his life, he needs to be free to act on it. As Rand put it, rights are a moral sanction of man’s freedom of action in a social context, her emphasis being on the word “freedom”.

Given these, where the need to exclude is an essential condition for man to act on his values in the service of his life, exclusion of others becomes a right. This is true in the case of material objects because their scarcity demands exclusivity. It is not true in the case of ideas and patterns because of the lack of a need for exclusivity for man’s freedom of action to exist.

This further means that the “right to exclude” is relevant ONLY to material objects where their nature (scarcity) demands exclusivity. In contrast, for ideas and patterns, the concept of “right to exclude” is irrelevant BECAUSE exclusivity is NOT a condition existence essential for man to apply his non-material values in the service of his life. Thus, for ideas and patterns, it the “right to exclude” does not flow logically from Objectivist premises.

On the other hand, given that exclusivity is NOT POSSIBLE with respect to ideas and patterns, failure to recognise this is a serious error and a refusal to acknowledge it is a clear cut case of evasion of reality. Further, demanding that such exclusivity be enforced is nothing more than an attempt to command nature without obeying it in the first place. That transforms into the much more serious offence of whim-worshipping – something no Objectivist would consider moral.

This is why David Kelley is wrong and you are. I am quite confident that if this argument is included in any discussion with an Objectivist, it is not going to be too difficult to bring him around. I hope you give it a serious try.

Bala January 3, 2010 at 3:18 am

Stephan,

Sorry about a small error. I said

“This is why David Kelley is wrong and you are.”

Please read as “This is why David Kelley is wrong and you are right.”

Peter Surda January 3, 2010 at 4:20 am

I apologise, I am not intimately familiar with objectivism. Allow me another attempt.

@MichalM said:
> Using and acting upon are not the source of the
> right to treat something as property, they are the
> benefit thereof.
First of all, even with this explanation, it is not clear to me which way the implication should go (property allows to act, or acting requires property). I will therefore refute both.

“Acting upon something” is a meaningless description. What does the “upon” mean? Is it understanding? Ownership does not require that. You can buy a patent from a inventor even if you don’t understand it. Is it that it broadens your options to act? Not necessarily, if there is an overlap, either on the same layer or on a different one, you are prevented from acting despite ownership (this has nothing to do with IP). Is it motivation or inspiration? You don’t need to own something in order for that. Soviet Union inspired Ayn Rand to write her books, yet it cannot be concluded that either she owned SU or that SU owned her works. Is it the ability to satisfy your needs? Again, this is possible even by things you do not own (I am quite sure Ayn Rand’s actions satisfied her needs in the previous example). The least vague re-definition of the above that I can come up with is that there is a causal relationship between the “something” and the act (coincidentally, that is also what Ayn Rand says in Galt Speech). However, as I tried to explain before, that “proves too much” and leads to absurd conclusions.

So, it is not me that is concrete-bound but you. You (or the authors of the books you read) extrapolated the principles of ownership of immaterial goods from existing IP laws and then created a theory that explains it. But the consequences of the theory, as presented, reach much father than you realise. You still only apply the theory to very specific cases of immaterial goods (words, pictures and sounds as in copyright, and functionality/composition as in patents) and fail to see that it also has an effect in completely different areas, such as reputation, honour, motivation, inspiration, false assumptions (should acting based on a false assumption lead to ownership?), partial knowledge (is it possible to own something you don’t know everything about?), mathematics, competition (which, since it can prevent you from acting, might be concluded to infringe your property), customers (not wanting to buy your goods can also prevent you from acting).

Absent a meaningful and useful definition, we are left with the following options:
- immaterial goods cannot be owned
- immaterial goods can be owned but are always unique
- ownership of immaterial goods is non-exclusive
Feel free to pick your favourite.

MichaelM January 3, 2010 at 10:49 am

@ Bala

Source of non-initiation of force…

I asked: “What is it about man’s nature that necessitates the concepts of right and wrong that would require a man to abstain from the force all other living entities employ even if he were the most powerful of his species? “

You replied: “I could answer this by saying that it is fundamentally the fact that man is capable of forming concepts of time, is capable of projecting in time and is therefore capable of acting and does act for the long-range and not just for the range of the the moment and get into more discussion on related issues. However, that is not the point in the discussion we have had till now.

That is precisely the point — that man’s specific means of survival is forming concepts of existence and acting on them, aka reason and effort. By that means he produces that with which he can survive and thrive as what he is, and in any socio-economic context, he is the rightful possessor of that as property. It is the capacity of physical force to gain, withhold, or destroy what is produced by his reason and effort that demands the non-initiation of force principle. The principle protects his right to exercise his specific means of survival that is inherent in his nature.

—————–

What word? …

“Possession” is the right word because you can have it but once it is released in some physical form such as a device or a book, you are no more capable of excluding others from it.”

“Possession” is a morally neutral concept. It can be rightful or wrongful. It cannot be the right word for what I am explaining without the qualifier “rightful”. But since “rightful possession” is a synonym for “ownership” then “ownership” is a more precise and efficient term.

————————

right to exclude …

“… where the need to exclude is an essential condition for man to act on his values in the service of his life, exclusion of others becomes a right. This is true in the case of material objects because their scarcity demands exclusivity. It is not true in the case of ideas and patterns because of the lack of a need for exclusivity for man’s freedom of action to exist.”

The choice to exchange a limited use of a product of one’s reason and effort on one’s own terms is a freedom and right to act on one’s own values. When the product is a unique mental integration, its use can be limited to how and how much it may be concretized as well as how or by whom authorized concretizations of it may be used.

MichaelM January 3, 2010 at 11:22 am

@ Jay L

“Yet you are treating intangible entities as though they only exist in the human mind, that they are not an aspect of objective reality”

No. They are an aspect of the human mind that holds the mental integration. [As an irrelevant aside, I am not ready to say that sans humans intangible entities do not exist, as it would depend on the applicability of that to the form in which animals hold the perceptions that stimulate the functions of their bodies.]

Rand is dead, but the intangible entity that is Atlas Shrugged still exists in the minds of her readers and the concretizations they read.
———————–

“Therefore:
- All intangible entities are simply patterns or forms that tangible entities can be arranged in.
- The definition of an intangible entity is a possible arrangement of tangible materials.
- These possible arrangements exist independent of the existence of a tangible manifestation of them.
- These possible arrangements exist independent of the existence of a person to “think” of them.
- Therefore, intangible entities cannot be altered, created or destroyed.”

An arrangement is a relationship and cannot metaphysically exist independent from the related entities that possess it. It can however exist independently in an epistemological context, i.e. as an abstraction that can be concretized in numerous varying arrangements of varying physical entities without altering its identity.

When I create a unique mental integration in my mind, it is concretized as a particular arrangement of the components of my brain. I can enable you to concretize it in a particular arrangement of the components of your brain by concretizing the arrangement in vocal sounds or written word that you can hear or read.

Bala January 3, 2010 at 11:54 am

MichaelM,

” That is precisely the point…..he is the rightful possessor of that as property. ”

Who is denying this? Not me.

” It is the capacity of physical force to gain, withhold, or destroy what is produced by his reason and effort that demands the non-initiation of force principle. ”

What bearing does this have for the gaining of an idea that does not deprive the original possessor of either the idea or the freedom to act to apply it in the service of his life? The answer is NOTHING AT ALL!!!!

” The choice to exchange a limited use of a product of one’s reason and effort on one’s own terms is a freedom and right to act on one’s own values. ”

Whim-worshipping explained. That’s all this reply of yours is. In spite of the point that ideas, by their very nature, are not amenable to exclusivity once they are concretised and the concretisation is sold, you insist that it is alright to try to exclude. Be my guest, but you are up against nature.

Secondly, you are still guilty of distorting the Objectivist concept of “rights”. While Rand had put it in different ways, the one that is most relevant in this specific context is that rights are a recognition of a condition of existence essential for the survival of man qua man.

For man to survive qua man, he needs to be FREE to apply his ideas to act to rearrange material objects to serve his life. The key point (which you are still evading) is that my possession and subsequent instantiation of your idea does not have any bearing whatsoever on your FREEDOM to act to instantiate it yourself. Thus, for man to survive qua man, exclusivity in possessing and instantiating ideas is NOT AN ESSENTIAL condition. Hence, it is NOT a “right’. To call it a “right” necessarily requires you to EVADE REALITY, i.e., the non-necessity of exclusivity.

” When the product is a unique mental integration, its use can be limited….. ”

It cannot be limited. It is not in the nature of ideas to be restricted thus. They flow and multiply as they do. That you wish them to be restricted does not make it possible. Once again, whim-worshipping.

MichaelM…. Let me put it this way. Unless you refute my statements on the impossibility and non-necessity of exclusivity, this argument is going nowhere. Digging deeper into your premises is not going to help because those premises have already been incorporated into my arguments. By now, it must be obvious that I am not ignorant of those premises. So, either you make a proper rebuttal or acknowledge that I am right. Anything else is a waste of your and my time.

Jay Lakner January 3, 2010 at 10:16 pm

MichaelM,

I can summarise your position as follows:
A pattern only exists if a tangible manifestation of it exists.

This is a very common error and the flaw is revealed when one asks the question:
How do we know if a tangible manifestation of a pattern exists?

In order to know something, we need to observe it. But observation is a process and this process alters the very thing we are observing.
It is meaningless to say that only patterns that have tangible manifestations exist because we have no way of knowing which patterns are currently manifested.

The only patterns you ‘know’ exist are the patterns that are manifested in your own brain. You cannot ‘know’ whether these patterns are the same as that which you observed. You cannot ‘know’ whether another human has the exact same pattern manifested in their brain. But you do know there must exist an objective reality outside of your own consciousness. And you know that the tangible materials that make up this reality are arranged in patterns. And you know that you cannot truly ever know what the reality of these patterns are.

The only meaningful way to treat this problem is to consider all patterns as possibilities. We can say that all patterns which are permitted by the laws of the Universe are possible. And since possibilities exist, all patterns exist. This is irrespective of whether there are observed tangible manifestations of them.

Harrison Ainsworth January 4, 2010 at 12:44 pm

At the very root of (non-utilitarian) pro-IP argument there is a contradiction.

When claiming ‘ownership’ they must deliberately disclaim any connection to the work’s material instance. They claim the pure abstract alone. And they must since extension of the ownership depends on claiming something that is copyable.

But then, when talking about other people’s copies, they suddenly want to claim ownership and control over the instances of the abstract. They say you cannot have that copy.

First they disclaim ownership of material instance, then they want to claim it. It is a clear contradiction, hence invalid.

MichaelM January 4, 2010 at 6:24 pm

@ Harrison A

You either have not been reading the thread all along or missed the sense of my comments.

Yes, what is owned is the abstraction — the integrated set of mental integrations. As you correctly point out, that integration can exist in multiple instances that can concretize it in various ways: someone else’s mental integration, numerous images of fonts and languages, actors acting, voices speaking live or on recordings or broadcasts thereof.

Before a book is sold, it is usual that the author owns the IP and the publisher owns the material concretizations of it. Since the author only sold to the publisher limited rights to concretize it, the printing of those concretizations that the publisher owns does not increase his ownership of rights to the story one iota. The publisher does not own the right to make any more concretizations than his terms with the author allow.

Consequently, he cannot sell such rights to his customers, nor do they acquire them in any other way when they buy and read that copy. While it is usual that the publisher disclaims any ownership of the material instance, he doesn’t have to. He could instead loan or lease his concretizations like libraries do with the concretizations they own.

But the use and disposition of a concretization and the use and disposition of that which it concretizes are two entirely distinct actions, and the rights to each may be separably and differently defined and transferred to others under separate and different terms by their owner(s).

Jay Lakner January 4, 2010 at 8:12 pm

MichaelM,

Regardless of whether you follow my logic on the status of the existence of patterns, you must concede than an individual pattern cannot be altered. It’s tangible manifestations can be multiplied. The pattern can be built upon to discover new patterns. But the pattern itself cannot possibly be altered.

“Ownership” is the retention of the right to alter the particular form of the product of one’s own reason and effort as well as any product of the reason and effort of others acquired in a voluntary exchange.

If your “reason and effort” resulted in the manifestation of an intangible entity, then “ownership” of that entity is the rentention of the right to alter it.
But an intangible entity cannot be altered.
If someone arranges their tangible property into your intangible arrangement, they are not altering your intangible entity.
Ownership of an intangible entity is meaningless because there is no need to protect its integrity.

If you want to prevent others from arranging their property into a pattern that you discovered, “ownership” of this pattern cannot do this. “Ownership” is the wrong word to describe the limitations you wish to impose on people.

What are you really advocating?
That we give the “discoverer” a special privilege, the privilege of excluding others from arranging their property into the intangible arrangement discovered.

Rather than advocating “intellectual property”, you are advocating “intellectual privilege”.

Hence, IP laws are simply a form of subsidy or welfare for discoverers of intangible entities. IP laws are therefore nothing more than a tax, a wealth distribution scheme.
Those who defy these laws are not “stealing”. They are simply not recognising the legitimacy of this tax.

MichaelM January 4, 2010 at 9:45 pm

@ Jay L

“I can summarise your position as follows:
A pattern only exists if a tangible manifestation of it exists. … How do we know if a tangible manifestation of a pattern exists?”

In the context of knowledge, knowing of the existence of something requires a manifestation of it that is either directly or indirectly perceivable with our senses. I have little doubt that there are existents for which we have no perceivable evidence. But in the context of useful knowledge, until they are evidenced, for all practical purposes, they do not exist, meaning they have no relevance to the rest of what is knowable. In other words, you are using the word “exists” in two different contexts simultaneously as if they had the same meaning.

“And you know that you cannot truly ever know what the reality of these patterns are.”

Reality as perceivable by our senses is the only reality there is. By what other means could you posit a different realty. All other possibilities can only be posited by suggesting a differing set of abstractions that necessarily rely on the same perceptual capacity.

That said, what is the relevance of these questions to IP?

Bala January 4, 2010 at 10:44 pm

MichaelM,

I am still waiting for a substantive reply to the serious question I have been posing to you many times on this thread. Until you do, statements of yours like this one below

” “Ownership” is the retention of the right to alter the particular form of the product of one’s own reason and effort as well as any product of the reason and effort of others acquired in a voluntary exchange. ”

have no meaning because the confusion regarding “ownership” of ideas and patterns persists in your “arguments”. Until you address the fundamental point that exclusivity is neither necessary nor possible for ideas, statements on “ownership” of ideas would be tantamount to dodging a tough question or begging the question. So, please address it.

Bala January 4, 2010 at 11:08 pm

MichaelM,

” Yes, what is owned is the abstraction ”

This is where you are going wrong again and again. An “abstraction” cannot be owned because it resides in the mind of the author and is just not available to anyone else. There is no need to exclude anyone else from it. Hence, the concept of “ownership” is meaningless; Only “possession” is relevant and it is utterly ridiculous to apply notions such as being “rightful” or not. There is no such thing as “wrong” possession of an idea. Wrong, if any, can only lie in the actions prior to and after grasping the idea.

The only thing that is available to others is the concretisation. By studying it, the owner of a concretisation can work his way to the very same abstraction that exists in the author’s mind. All he needs to do is to apply his powers of reasoning to the concretisation that is now his property. At this stage, the newly formed abstraction becomes his and remains his alone until he dies or forgets it. The owner cannot claim any right to this new abstraction or to the further concretisations that owner of the original concretisation may make of the newly formed abstraction.

All this apart, my fundamental question to you remains and I will not answer any replies you post to this particular reply of mine till you address the original question.

Jay Lakner January 5, 2010 at 1:01 am

@MichaelM.

You wrote:
“In the context of knowledge, knowing of the existence of something requires a manifestation of it that is either directly or indirectly perceivable with our senses. I have little doubt that there are existents for which we have no perceivable evidence. But in the context of useful knowledge, until they are evidenced, for all practical purposes, they do not exist, meaning they have no relevance to the rest of what is knowable.”

It is clear that you did not understand my arguments.
In order to “know” the state of existence of an object, we have to observe it.
Observation is a process. (eg photons bouncing off the object and colliding with our eyes)
This process alters the state of the object.
This process also alters the state of our sense organs.
All our brains perceive is an ‘altered’ state of the subject of our observation.
We cannot ever know what the state of the object was prior to our observation of it.
We cannot ever know what the state of the object is after our observation of it.
Thus, objective reality can never be precisely known.
All we can ever know is an approximation to objective reality.

You wrote:
“In other words, you are using the word “exists” in two different contexts simultaneously as if they had the same meaning.”

No I did not. I was trying to describe the two different contexts and why your use of “exist” was inadequate. But it seems I did not explain my position clearly enough.

You wrote:
“Reality as perceivable by our senses is the only reality there is.”

Incorrect.
There is the reality we perceive and the reality that actually exists. And, as I have tried to explain, they are not the same thing. We can never ever accurately perceive what is actually there.

We can know that a tangible entity exists, but we can never know its precise arrangement.

MichaelM also wrote:
“That said, what is the relevance of these questions to IP?”

Firstly.
My arguments demonstrate that it is meaningless to state that “only patterns with physical manifestations exist”. To use “exist” in this context is useless. Hence, one should define patterns as possibilities and treat every permitted pattern as already existing.

Secondly.
The statement, “the only patterns that exist are those with physical manifestations”, when taken to its logical conclusions leads one to believe that only that which is in the mind exists. This is contradictory to the starting premises of Objectivism.

Thirdly.
One should not propose to assign ownership to intangible entities without first ascertaining the precise properties of intangible entites and how they relate to human action.

Fourthly.
The presence of tangible entites can be ascertained but the arrangement of them can never be ascertained. Therefore it is meaningful to assign ownership to tangible entities and completly meaningless to assign ownership to intangible entities.

Fifthly.
I did not set out to explore this aspect of the topic as thoroughly as I did. The inaccuracy of the statements you were making compelled me to lay out my position. My purpose when I began was merely to get you to acknowledge that an intangible entity cannot be altered.

MichaelM January 5, 2010 at 10:27 am

@ Bala

“What bearing does this have for the gaining of an idea that does not deprive the original possessor of either the idea or the freedom to act to apply it in the service of his life? The answer is NOTHING AT ALL!!!!”

“Thus, for man to survive qua man, exclusivity in possessing and instantiating ideas is NOT AN ESSENTIAL condition.”

In each of these two statements you are asserting that there is some intrinsic value to be derived from a creation independent of the creator’s definition of it.

In the first instance, you are attempting to deprive the creator of the freedom to define what is in the service of his life. In the second, to define exclusivity and whether or not and/or to what degree it is worth claiming and defending.

When I speak up in defense of his right to define the benefits that motivated his creation, you then assert that the by nature exclusivity cannot be limited or in the service of his life as man qua man.

But there are no such intrinsic values. And when Rand says that rights recognize a condition of existence essential for the survival of man qua man, the condition she is referring to is the freedom of each person to take his own best shot at recognizing specifically what constitutes the “essential”, to pursue it accordingly, and to enjoy the benefits of correctly achieving what is actually essential or suffer the consequences if he is wrong.

Furthermore, your freedom and right to rearrange what you own is not diminished by the creator’s prohibition against incorporating his creation in it if a term of your purchase of access to the creation was that it could not be utilized separately from the concretization you purchased.

————————–

“An ‘abstraction’ cannot be owned because it resides in the mind of the author and is just not available to anyone else. “

No. It resides wherever it is concretized.

When a purchaser of a concretization derives from it the abstraction it concretizes and thereby concretizes it in his own mind, it is not a “new” abstraction just as the abstraction concretized in the many copies of the book are all the same abstraction. The creator of the abstraction may demand a price for every book that concretizes his abstraction, i.e. for every concretization of it.

“Prof. F: If you and I have the same concept, does that mean that the same entity is in both of our minds?”

“AR: If we are both careful and rational thinkers, yes.” [Introduction To Objectivist Epistemology, paperback p.153]

Harrison Ainsworth January 5, 2010 at 3:45 pm

@ MichaelM – January 4, 2010 6:24 PM

“the use and disposition of a concretization and the use and disposition of that which it concretizes are two entirely distinct actions”

– Indeed. The whole matter boils down to the single point at which the claim of ‘ownership’ is made, and what is claimed. That separateness is what breaks it.

The concepts of abstract and concrete are mutually exclusive, so when claiming one you cannot at the same time be claiming the other.

If you want to claim an abstract based on being its creator, then the claim can have no connection to any concrete instances.

If you want to claim any control over the instances, it must be a separate claim. But then it cannot derive justification from anything to do with the abstract and its creator.

If you want some kind of combination or interaction of the two, you need two separate justifications — being the creator, alone, is insufficient.

It seems related to the idea in an earlier comment: http://blog.mises.org/archives/011323.asp#c643452 . And both seem to be aspects/expressions/derivatives of Kinsella’s core argument: there is an inescapable conflict between IP and real property.

Bala January 5, 2010 at 5:21 pm

MichaelM,

” In each of these two statements you are asserting that there is some intrinsic value to be derived from a creation independent of the creator’s definition of it ”

Firstly, I have never spoken or even hinted at an “intrinsic value”. All value is subjective. Secondly, a thing is whatever it is. What it is does not depend on my definition. In any case of conflict, it is the definition that would need correction. The same goes for an idea or a pattern. What I can get out of an idea/pattern and what value it therefore holds for me is all in my mind (and what it can figure out) and has no relationship whatsoever with the creator’s definition of it. An idea is often capable of far more than the creator intended it to be/do.

” In the first instance, you are attempting to deprive the creator of the freedom to define what is in the service of his life. ”

I am only identifying a primary aspect of reality. If that appears like an attempt to “deprive” the creator, the fault must lie in your eyes.

” In the second, to define exclusivity and whether or not and/or to what degree it is worth claiming and defending. ”

If pigs had wings…… At some stage in life, it is necessary to face reality and stop fighting nature. Wishing won’t make it so.

” When I speak up in defense of his right to define the benefits that motivated his creation, you then assert that the by nature exclusivity cannot be limited or in the service of his life as man qua man. ”

I iinvite you (like I have done explicitly before this on this very thread) to prove me wrong. If you aren’t able to muster the arguments required, at least think long and hard about what I have said rather than trying to cling on to your beliefs to the very end (as you are doing now).

” creator’s prohibition against incorporating his creation in it if a term of your purchase ”

We have gone through this before, but why do you need Copyright Law when Contract Law should be sufficient?

” No. It resides wherever it is concretized. ”

This is utterly meaningless. Abstraction, by its very nature, is something that happens and hence resides ONLY in the mind of a person.

Finally, I don’t think this is going anywhere, primarily because I think you do not want to reconsider your position even when you do not have a single argument against mine. I suggest we end this discussion here rather than waste time and energy stubbornly repeating the same things ad nauseum.

Peter Surda January 6, 2010 at 2:14 am

@MichaelM:
> When a purchaser of a concretization derives from
> it the abstraction it concretizes and thereby
> concretizes it in his own mind, it is not a “new”
> abstraction just as the abstraction concretized in
> the many copies of the book are all the same
> abstraction.
The very fact that we disagree proves you wrong. If we both draw different conclusions from observations of the same facts, how can the abstraction in our minds be the same?

You still stick to very narrow applications of the IP theory. I can only ask you again to broaden your horizons, open your eyes and see the unseen (consequences of your theory).

Keith Hamburger January 14, 2010 at 5:16 pm

Bala,

You continue to refer to the question of when someone buys a copy of a book and the contractual relationship when that transfer takes place.

You still haven’t answered how, if no such a contractual relationship exists, one can still claim the property to the ideas. If they are overheard in passing, if one sees a copy of a book that someone else purchased, any of the myriad ways in which no contractual relationship could be said to exist, how can you still claim a right to a reproduction of an idea?

As to ownership, one common test of ownership is that the owner of something has the right to destroy it. Once an idea leaves a person’s direct physical control, once they publish it or speak it to someone else or otherwise release it, they are no longer able to destroy that idea. Once someone relinquishes direct control of an idea they can no longer claim to own it.

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