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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 }

Manuel Lora December 26, 2009 at 8:26 am

Galambo-Silastarianism!

Serge Beauchamp December 26, 2009 at 9:25 am

I hope there are more sophisticated proponents of “IP rights” than J. Neil Schulman, because his position strikes to me as a series of amateurish non-sequitur.

mpolzkill December 26, 2009 at 9:57 am

Oh that all those Randians on that fateful day in their youth *had* been tricked into reading actual literature instead.

Deefburger December 26, 2009 at 11:01 am

If I were to memorize and recite Atlas Shrugged, who owns the “thing” I create when I recite?

I am the creator and first owner of the recital.

If I charge admission, what am I selling? A recital by my creative power, or Atlas Shrugged?

The Identity of the information is knowable only by those who know the work already. The resource that is scarce is the ability to recite, not the content.

Intellectual objects such as works of fiction are patterns of ideas. It is in the making them physical that is the source of their being, the source of their being manifest in reality.

A particular pattern has identity only in the uniqueness of the pattern. The manifestation of the pattern in physical reality gives the creator of the manifest object a new object by virtue of the pattern imposed upon the property he already possesses. I already posses my ability to speak and memorize. I give greater value to myself by being able to recite Atlas Shrugged. I know it is Atlas Shrugged because I am already in possession of a copy of Atlas Shrugged, in my mind.

I recognize the pattern as not being one I created originally. I know I am reciting a pattern of ideas created originally by someone else, some one with an Identity. The pattern is a part of that identity, but the identity is not the pattern, it is the property of the pattern that distinguishes it from other patterns. No one listening to my recital mistakes the content from the creative object. I am the creative object that is re-creating a pattern that is a copy of an other pattern that was once originally created by an other individual with distinct identity.

Everything in the universe is unique. It is natural law. The only exception to the rule is the quantum object paradox (the same object in two places at the same time.) Even two identical objects must exist in different spaces if they are to exist at the same time. Their experience in those two different spaces makes them unique in their experience of the universe, from that point of view.

Metaphysical objects cannot be owned. You can’t homestead metaphysical reality, you are not big enough. You can only Observe Metaphysical reality. Seeing it is not possessing it. Copying it into physical form is possessing it, but only the physical copy.

My recital copies Atlas Shrugged into physical form, made manifest by my ability to recite, the recital is a unique and scarce resource and I am justified in charging admission. But I do not lay claim to the content as my own because I observed it Metaphysically, and cannot own it. Instead, I recognise the pattern and Identify it with the original author. Why? Because she published it. She made manifest the first manuscript. She produced a physical copy of the enormous thought she observed in the Metaphysical. Only She could have had that experience of the Metaphysical reality, because of HER identity, HER place in the universe.

What if Ayn Rand came to me in a dream? Do I now posses her and by extension all of her IP? She is an object with distinct identity. And she is manifest in my mind. She is now my possession and my right? She told me herself that I am her master. She gave herself to me and all that she possesses in the world. In my mind, I am the first creator of the slavery of Ayn Rand. By Schulman’s logic you all owe me royalties for Atlas Shrugged!

iawai December 26, 2009 at 1:30 pm

Wouldn’t Schulman’s argument totally dissolve w/o first assuming a single, binding law-giver?

Certainly I can, in my own set of values, wish to recognize an original author as deserving of all proceeds earned from any sort of copying of that creation – entirely consistent with Schulman’s derivation of why I might recognize such a thing. However, I am not all powerful as to (1) make all other actors think identically, and (2) to actually enforce the transfer of any “illegally” earned proceeds back to the original author/creator.

Without this omnipotence, any IP scheme is revealed as just a subjective rule as promulgated by a guild, seeking anti-competition, anti-creation, anti-consumer protectionism on the part of short-term profit-seeking for has-been creators.

Tad Wimmer December 26, 2009 at 2:29 pm

Mr. Kinsella argues that, since he owns the paper and the ink necessary to print a book, that he should not be prohibited from putting the ink on the page in whatever pattern he chooses. He does not, however, have the “right” to put the pattern of ink on the paper using Mr. Schulman’s printing press without Schulman’s consent. In this case, Schulman has property rights in the printing press, a tool he has acquired or constructed.

Mr. Schulman argues that the pattern of words that makes up a particular literary work are the equivelent to the printing press — a tool, in the form of an abstract “idea,” that an author uses to create the book. Just as Kinsella cannot use Schulman’s printing press without his consent, regardless of his ownership of the paper and ink, Schulman argues that Kinsella cannot use his “idea” and for exactly the same reason.

The debate here, then, is whether or not the “abstract idea” is a “thing” that can be “owned.” Had Rand or Dickens not published their work, it is highly unlikely that either Atlas Shrugged or A Tale of Two Cities would be the examples in this discussions, and Mr Kinsella would not have any reason or inspiration for printing either work on his paper with his ink. So the abstract idea, like the physical printing press, is a “thing” that can be withheld. A practice quite common in Victorian England — Shakespeare himself never published a manuscript for fear that other companies would produce his works and decrease the revenue of “The Kings Men.”

The question, I think, is more one of where the boundaries are rather than one of can it be owned. Much like trying to determine “rights” to underground water.

MichaelM December 26, 2009 at 5:55 pm

All political rights are rights to actions, not things. Specifically and exclusively, they are rights to exercise reason and physical effort, the product of which is man’s sole means to survive and thrive as a human being. Property is the political principle that sanctions an individual’s exclusive right to use and dispose of the product of his own reason and effort.

Matter in and of itself cannot be property because it cannot be claimed to be the product of any human being’s reason and effort. Material property is matter that embodies an application of human reason and effort. Thus, Tad Wimmer’s “thing” that can be “owned” as IP is an original embodiable application of reason and effort as concretized, specified, and defined in an actual embodiment.

Whatever benefit the originator of such and application can derive from the individual evaluations of it by others is his to consume, to sell or license, to give away, or to bequeath. To insure full benefit of such dispositions to the originator, the potential value of his rights to acquirers must extend beyond his unpredictable death (50 years for instance) . Thereafter, the application can never again be the subject of property rights as there would be no one who could claim it to be an original product of his reason and effort.

When life is one’s most fundamental goal and standard of value, autonomy in the application of reason and effort in the service of that life is the ethical mandate that demands that one never endorse a social system that does not guarantee one’s right to the exercise of that autonomy and the exclusive disposition of its product. The failure of every anti-IP argument is a direct result from the inability to grasp and/or the willingness to evade this ethical parent of the principles of ownership and property.

Silas Barta December 26, 2009 at 6:21 pm

Stephan: Though you deny it, you actually are implicitly assuming a “right to property value”, because it is ultimately the property owner’s valuations that, under your theory, determine whether there has been “unauthorized” use of the property. For example, if someone fired a neutron beam through someone’s property, which makes no discernable difference, that is not aggression. OTOH, if the owner does notice, and doesn’t like a kind of beam that is passed through, that is aggression.

So you do use the same premise. (And no it’s not an artifact of the example, there are numerous other ways your theory implies such situations.)

Also, as I’ve mentioned before, your constant argument that IP/identity/etc “violates rights in already-owned property” is circular. Since the very topic at stake is the issue of what rights you are getting when you homestead, you cannot assume that homesteading grants certain rights as a premise for an argument that IP (or whatever) violates such rights.

(btw, is this post gadflyish and uncivil? I want to know how you use that term.)

Peter Surda December 27, 2009 at 3:55 am

@Silas:
> … because it is ultimately the property owner’s
> valuations that, under your theory, determine
> whether there has been “unauthorized” use of the
> property …
The base for (classical) property rights is the integrity of the good that represents property. The damage to integrity can be objectively measured and assessed (although there might be of course a measurement deviation). But, in general, any integrity damage is a violation of property.

> Also, as I’ve mentioned before, your constant
> argument that IP/identity/etc “violates rights in
> already-owned property” is circular.
I agree with you on this level. Maybe Stephan cannot articulate his point that well.

The point is that IP creates a dual reality scheme. There is the physical layer, and immaterial layer. These necessarily overlap, and the overlaps cause dual ownership. Therefore, they cannot both be valid at the same time. Since the IP proponents claim that the immaterial ownership takes precedence, that invalidates (classical) property rights.

Peter Surda December 27, 2009 at 4:15 am

@MichaelM
> The failure of every anti-IP argument is a direct
> result from the inability to grasp and/or the
> willingness to evade this ethical parent of the
> principles of ownership and property.
And the failure of ethics-based pro-IP arguments is that logic trumps ethics.

The “creation” source of property is a particularly useless property demarcation criterion. If taken to its logical conclusion, everything that is caused by a previous action is property of the original actor. All positive externalities become property rights violations. Once an idea of another person enters your head, the principle would require you to become his/her slave. Human interaction would become impossible.

Stephan Kinsella December 27, 2009 at 8:59 am

Peter Surda

“The point is that IP creates a dual reality scheme. There is the physical layer, and immaterial layer. These necessarily overlap, and the overlaps cause dual ownership. Therefore, they cannot both be valid at the same time. Since the IP proponents claim that the immaterial ownership takes precedence, that invalidates (classical) property rights.”

Wow–what a brilliant way of putting it.

MichaelM December 27, 2009 at 11:26 am

“And the failure of ethics-based pro-IP arguments is that logic trumps ethics.”

And the failure of this statement, not to mention all your previous and subsequent ones incorporating the words “logic” and “ethics”, is the fact revealed by it that you know not the meaning of either. As a result, you are making the uniquely nonsensical assertion that “the means nullifies the end.”

———————-

“The point is that IP creates a dual reality scheme. There is the physical layer, and immaterial layer. These necessarily overlap, and the overlaps cause dual ownership. Therefore, they cannot both be valid at the same time. Since the IP proponents claim that the immaterial ownership takes precedence, that invalidates (classical) property rights.”

The philosophical illiteracy of anti-IP arguments does not stop with ethics. Epistemologically, they are concrete bound, utterly unable to recognize separately abstracted aspects as equally real. In this case that deficiency cripples the argument by preventing the full understanding of the perceived “overlap” that enables differing contractual relationships for possession and use of separate aspects.

Keith Hamburger December 27, 2009 at 12:28 pm

“In this case that deficiency cripples the argument by preventing the full understanding of the perceived “overlap” that enables differing contractual relationships for possession and use of separate aspects.”

Don’t contractual relationships have to be explicit and mutually agreed upon?

If I hear a song being sung and repeat that song or write it down, where have I violated an explicit and mutually agreed upon contractual relationship?

I would certainly agree that it would be immoral for me to claim that I created something that was actually created by someone else. However, libertarian though differentiates between that which is immoral and that which is a crime.

If I were to proclaim myself to be someone I am not to someone else in order to profit that can be handled through fraud statutes. If I admit to being myself and not the creator but I openly use ideas that have been created by someone else with whom I have no relationship how can that person, or anyone else, claim I have violated a contractual relationship?

How does any of that justify IP?

Bala December 27, 2009 at 7:55 pm

Stephan,

” This is some wild metaphysical legerdemain here ……. floating around up there in the Platonic realms. ”

This entire answer to what was (IMO) the most important point being raised by Schulman and what is the basis of his argument for the legitimacy of treating ideas and patterns as “property” appears (to me) to be poorly formed. Your answer would satisfy a Libertarian but not an Objectivist or someone who subscribes to Rand’s thinking on IP. You need to address the metaphysical issues and show how there is no inductive proof, starting with sound axioms and definitions, for the validity of IP. Calling it “metaphysical legerdemain” does not help the discussion move forward.

Jay Lakner December 27, 2009 at 8:33 pm

Peter Surda wrote:
“The point is that IP creates a dual reality scheme. There is the physical layer, and immaterial layer. These necessarily overlap, and the overlaps cause dual ownership. Therefore, they cannot both be valid at the same time. Since the IP proponents claim that the immaterial ownership takes precedence, that invalidates (classical) property rights.”

I agree with Stephan. This is a pretty damn brilliant way of explaining it. Excellent work Peter. :)

Jay Lakner December 27, 2009 at 8:51 pm

I still find it fascinating that pro-IP advocates continue to try and defend their position.

How can they not be aware that their definition of property is completely flawed?
How can they not see that the inevitable logical conclusions of their definition of property must result in a total breakdown of human freedom?
Are they aware that, by their logic, the first human to homestead something now “owns” the concept of “homesteading” and can legitimately prevent others from “owning” anything?
Do they not realize that the initial act of homesteading was illegitimate because the first human did not “own” the concept of homesteading in the first place?
Can they not understand that the arbitrarily imposed IP time limits and fair use laws automatically demonstrate that IP cannot possibly be a fundamental form of property?
Are they even capable of understanding that tangible and intangible entities have completely different characteristics and that the specific details of these differences require that we treat them separately?

Honestly, it baffles me.

Gil December 27, 2009 at 9:46 pm

* sez yoo.

* how can they see that total private landownership makes trespassers of everyone else?

* can humans ‘homestead’ anything since the land and everything on it was there before anyone therefore the first person can’t ‘homestead’ it because all he’s doing is fencing it off from others.

* can it be shown that a disuse of land can make land ‘unhomesteaded’ and ‘unowned’ and make it open to others regardless of title deed?

* is not property rights tied to productivity, resources and innovations not territorialtiy and spatial exclusivity?

Peter Surda December 28, 2009 at 5:16 am

@Stephan & Jay:
Thanks, it’s much appreciated.

@ MikeM:
> And the failure of this statement, not to mention all
> your previous and subsequent ones incorporating
> the words “logic” and “ethics”, is the fact revealed by
> it that you know not the meaning of either. As a
> result, you are making the uniquely nonsensical
> assertion that “the means nullifies the end.”
I totally fail to see anything intelligible in this paragraph. It appears like just another attempt to confuse. My statement continues to be valid.

> The philosophical illiteracy of anti-IP arguments does
> not stop with ethics.
Hmm.

> Epistemologically, they are concrete bound, utterly
> unable to recognize separately abstracted aspects
> as equally real.
Just another attempt to confuse. You pull out a claim out of nowhere and equate it with my argument. The issue isn’t whether immaterial aspects are real, but whether they are relevant and useful demarcation criterion. And they are neither.

> In this case that deficiency cripples the argument by
> preventing the full understanding of the
> perceived “overlap”
What is it that you actually claim? Do you claim that this overlap does not exist? Then there can be no infringement. Or do you claim that the owner of the immaterial good also owns the physical good of the infringer? That would be something you made up, because it has no support in either current legal system or in other pro-IP theories.

> that enables differing contractual
> relationships for possession and use of separate
> aspects.
Since contracts and IP are mutually exclusive sets, this part of the sentence makes no sense. It makes no sense even if I ignore that. You probably wanted to say that the material and immaterial “aspects” of an object can have a different owner. Which is a valid conclusion within the pro-IP framework, and actually means the same as my argument. And it doesn’t negate the rest of my original argument: IP proponents assert that immaterial properties take precedence and therefore it invalidates physical property. If it wasn’t like that, then it would be an equally valid conclusion to claim that the immaterial aspect invaded the physical good without the physical good owner’s consent and the owner of the immaterial good should be prevented from using the immaterial good unless it is removed.

Furthermore, you ignore that my conclusions of your own premises lead to absurdities.

I call a Chewbacca defence.

Russ December 29, 2009 at 9:17 am

Peter Surda wrote:

“The point is that IP creates a dual reality scheme. There is the physical layer, and immaterial layer. These necessarily overlap, and the overlaps cause dual ownership. Therefore, they cannot both be valid at the same time. Since the IP proponents claim that the immaterial ownership takes precedence, that invalidates (classical) property rights.”

If I understand this correctly (and I’m not sure I do), I don’t agree. Classical property puts limits on what others can do with their own property and bodies, such that they cannot rightly infringe your property rights. IP does the same, that is all. It does not invalidate classical property rights, any more than my classical property right to my house invalidates your classical property right to your bulldozer, just because my right limits your right to the use of your property (you can’t drive your bulldozer through my house).

Peter Surda December 29, 2009 at 10:13 am

@Russ:
I guess my point is slightly different than you present. It is actually your argument that I consider a reason why I don’t phrase my argument as “IP limits what you can do with material”. So, I agree with what you say.

My point is different. First, the introduction of ownership of immaterial goods creates a dichotomy: the physical matter is owned by person A, and the immaterial attributes by person B. I think most IP proponents (apart from pure utilitarians) agree so far. Now, IP proponents argue that this means that as long as the physical object exhibits these attributes, person A’s use of the physical object should be prohibited, but person B’s use of the immaterial attributes shouldn’t. If one assumes (like some IP proponents do) that rivalry/scarcity is irrelevant, then the conclusion from previous sentence is only possible if the ownership of immaterial attributes takes precedence over the material ones. Therefore, the concept of material property is invalidated.

Apart from this “hard” issue, there are further, “softer” ones. For example, the fuzziness and subjectiveness of boundaries of immaterial attributes, the arbitrary choice of what attributes are relevant, creation of further layers (e.g. for software in US you have both a copyright layer and a patent layer) and many others I wrote about earlier.

MichaelM December 29, 2009 at 1:37 pm

“… my original argument: IP proponents assert that immaterial properties take precedence and therefore it invalidates physical property.”

I don’t.

Ownership is retention of the right to use and dispose 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.

There are many formats and means for the disposition of the products of reason and effort. There is no intrinsic precedence among them whether they are embodied in physical matter or not. In any exchange of such products, establishing the terms for their use and further disposition, together or separately, is the prerogative of their owners.

The publishing of a novel is a process that requires many differing applications of reason and effort of a multitude of individuals who exchanged them per a myriad of different contractual terms. One among them is the author who composed a particular string of concepts in a novel way that resulted in an original story. The complex abstraction that is the story is the product of the author’s reason and effort that he owns. The ideas, the facts, and the knowledge used by the author in his composition are not the product of his or anyone else’s reason and effort. They are rather recognitions of existing relationships of existents. Those may not be claimed by him or anyone else as property. Only the particular composition of abstract concepts that is the story belongs to the author.

Any unauthorized use or disposition of the story would constitute an initiation of force. Prohibition of that does not invalidate your ownership of anything. You retain full rights to the singular concretization of the abstraction the author owns and that you purchased. You did not purchase, however, the abstraction itself nor the right to concretize it elsewhere.

The distinction between “physical property” and “intellectual property” is one of form, not substance. Substantially, each is ownership of the product of reason and effort.

In the case of physical property, that product is inseparably embodied in matter and requires possession of the matter in which it is embodied to benefit from it. That, in turn, necessitates further applications of reason and effort to retain and maintain value, justifying ownership without time limitations. Ownership is continually reestablished by subsequent possessors.

In the case of intellectual property, the product is an abstraction that is infinitely applicable in multiple instances. Since no further application of reason and effort is required to sustain its value, ownership must be time-limited to benefit only the one whose product it is.

Any political principle like property rights that defines appropriate human relationships among men living in a society presupposes a more fundamental ethical conclusion of what is appropriate in the context of a man’s life as an individual. Thus such concepts as homesteading and original appropriation cannot be primaries. To be valid political principles they must be extensions of valid individual ethical principles to a social context. The Objectivist ethics provides the necessary base by demonstrating that man’s life qua man is the appropriate goal and standard of value, and that autonomy in the application of reason and effort in the service of that life is a primary ethical mandate.

Thence, extending that mandate into a social context, one may not endorse any system regulating socio-economic interrelationships that does not guarantee one’s exclusive right to use and dispose of the product of one’s own reason and effort, as in the case of its original embodiment in unowned land, aka homesteading or original appropriation. Intellectual property is ownership of the same thing (the product of reason and effort) and derives in the same way from the same principles.

Peter Surda December 30, 2009 at 4:27 am

@MikeM:
>> … IP proponents assert that immaterial properties
>> take precedence …
> I don’t.
Well, let me rephrase it: the conclusion of IP proponents’ arguments is that immaterial properties take precedence.

In all cases where an overlap between immaterial and material appears, the material owner (M) is prohibited from using the material in some ways, but the immaterial owner (I) is not restricted. Even if (M) can prove that he owned the material before (I) owned his “property”, the precedence does not change.

A similar case happens with software (in some countries): if a piece of code is covered both by a copyright and a patent, the patent takes precedence over copyright.

The reason for this is that the “upper” layers are more abstract than the “lower” ones. For the purposes of my argument, the reason is irrelevant, I just wanted to explain that this consequence is unavoidable.

A physical object always contains all kinds of attributes. A subset of them is not new. A subset of those was first encountered by someone else. All these sets and subsets are infinite in size. If IP is applied consistently, it means that ownership of the physical is never sufficient to use it and always requires a permission of a third party. Therefore, ownership of the physical is invalidated.

The rest of your comment is basically a narrative explaining that one has the right to the result of one’s efforts. If this was a sufficient argument, all positive externalities would become property rights violations and all consequences of an action would become (at least partial) property of the original actor. This is absurd. Even if property is extended beyond the material realm, one needs to draw an arbitrary line on the causality scale.

IP proponents’ arguments basically revolve around homesteading of attributes of physical objects. Although they do not explicitly claim it, is it evident that they only argue for homesteading of certain attributes, and deem other attributes irrelevant. I haven’t yet heard an IP proponent explain how to distinguish between those two categories.

Summary: IP proponents draw an arbitrary curve on a 2D graph, the axes of which are the causality and the attributes. They call the “inner” part of the curve “property”. They fail to explain how and why.

Bala December 30, 2009 at 7:11 am

MichaelM,

You started with this

” Ownership is retention of the right to use and dispose 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. ”

and ended with this

” Thence, extending that mandate into a social context, one may not endorse any system regulating socio-economic interrelationships that does not guarantee one’s exclusive right to use and dispose of the product of one’s own reason and effort ”

The obvious addition from the first to the second statement is the word “exclusive”. What would you do if the product of your reason and effort, by its very “nature”, is not amenable to exclusivity? Will you fight nature or will you follow the age-old dictum “Nature, to be commanded, must be obeyed”?

I choose the latter and hence find it immoral to treat ideas and patterns as “property”. What about you?

Keith Hamburger December 30, 2009 at 9:27 am

Perhaps another way of looking at this is from a more basic point of view.

Libertarians believe that properly defined set of negative rights can never be in conflict. My right to my property can never be in conflict with your right to your property. My right to my life does not conflict with your right to your life.

IP inevitably leads to a conflict of “rights” and, therefore, can’t be a properly defined a right.

Numerous examples abound, many of which have been mentioned in this thread. Some of the conflicts come from an invalid application but it does appear that the conflicts are not merely conflicts of application but of definition.

There is an inherent problem with a set of “rights” with built in conflict. Therefore, there is something within the set or the definitions that is faulty.

The most apparent fault is in the definitions of IP.

MichaelM December 30, 2009 at 11:39 pm

@Peter S

If you buy a book, you purchase a single concretization of the abstraction that is the story the author owns. That concretization is distinct from the abstraction it concretizes. There is no overlap. Nor is your ownership of the portion of applied reason and effort embodied in your copy of the book diminished in any way. Nor is your possession of the matter in which what you own is embodied invalidated in any way.

@ Bala

“What would you do if the product of your reason and effort, by its very “nature”, is not amenable to exclusivity?”

What practical applications of reason and effort that would be valuable enough to claim as property do you have in mind?

The abstraction (story) and its concretizations (books) are each immanently amenable to exclusivity of ownership by the respective parties.

@ Keith H

“Libertarians believe that properly defined set of negative rights can never be in conflict. My right to my property can never be in conflict with your right to your property. My right to my life does not conflict with your right to your life.”

This is true.

The author owns the abstraction. You own one concretization of it. There is no conflict of rights.

“The most apparent fault is in the definitions of IP.”

Also true.

And the failure to properly define IP stems from a failure to properly define physical property — specifically, the failure to recognize that the component of both physical property and intellectual property that is the subject of ownership is the application of intellectual and physical action that made the property possible and valuable.

Bala December 31, 2009 at 2:01 am

MichaelM,

” The abstraction (story) and its concretizations (books) are each immanently amenable to exclusivity of ownership by the respective parties. ”

Only till they remain in the head of the author or on the paper owned by the author. Once released, they are not.

MichaelM December 31, 2009 at 10:19 am

@Bala

“Once released, they are not.”

Correct. But it is up to the author to determine whether or not the abstraction will be sold (released) along with the particular concretization.

The author concretizes his abstraction and sells a copy to the publisher. At the same time, he leases to the publisher the abstraction itself, retaining it as his own property. Like any other lease, his contract with the publisher limits his use of it. One limitation is that any disposition of additional concretizations of it shall specify that only the concretization is being sold and not the abstractions concretized. This contractual term is stated by the phrase “all rights reserved.”

The retail buyer of a copy of the book gains exclusive use of that singular concretization. That includes the right to use and dispose of the abstraction that is the story to whatever extent he can in that specific concretization of it. He may read it, he may loan it, and he may give it away. He may tear it apart and use the pages as toilet paper or wallpaper or include them in a collage, alleged to be art.

He may not make any other concretization not permitted by the terms of the purchase.

With the word “release” you are attempting to nullify the author’s right to use or dispose of his property on his own terms — you’re trying to write a blank check that is not yours to write.

Bala December 31, 2009 at 3:00 pm

MichaelM,

” But it is up to the author to determine whether or not the abstraction will be sold (released) along with the particular concretization. ”

This part is what I am forced to call whim-worshipping, the gravest of Objectivist sins. You wish that ideas and patterns, even after release in the form of a book, should retain their exclusivity – which they cannot by their very nature and the nature of the man who uses them – and then formulate a set of definitions and a legal system that protects that exclusivity. Militating against “nature” is what you are doing.

” But it is up to the author to determine whether ….. ”

The only thing that is up to the author is whether or not he is going to release the manuscript. The terms of the contract are the only yardstick.

” At the same time, he leases to the publisher the abstraction itself, retaining it as his own property. ”

More whim-worshipping. You have already decided that it is legitimate “property” and are going on to describe how the “property” is being protected by the terms of the contract and to show that those who copy are violating this contract – poor reasoning when that which is in question is the legitimacy of treating ideas and patterns as “property”.

Bala December 31, 2009 at 3:10 pm

MichaelM,

” This contractual term is stated by the phrase “all rights reserved.” ”

Then Contract Law should be sufficient, right? Why do you need Copyright Law to enforce what is only a contractual obligation?

Let me give you a clue – that contract is unenforceable in a legal framework that respects the Rights to Life and Liberty.

MichaelM December 31, 2009 at 5:48 pm

The particular form of the laws that would guarantee the right to intellectual property is a subject of the philosophy of law, and as such, it does not arise until after the philosophical task in the branches of politics and ethics have recognized and defined it as the right that it is.

That said, for the sake of efficiency, I would prefer laws that automatically extend protection while allowing certain fair usage to others sans contract with the right reserved by the creator to waive, revise, or add to the restrictive terms of a disposition.

“Let me give you a clue – that contract is unenforceable in a legal framework that respects the Rights to Life and Liberty.”

This is long on assertion and short on substantiation. You need to show how a framework that respects the Rights to Life that include the right to the product of one’s mind would be able to enforce all but that one.

Of course a nation can exist that is unable to devise and carry out the task of protecting contractual rights — we presently live in one. But neither your inability to figure it out nor theirs is in any way relevant to the question of what is or is not property or what is or is not a right. The latter are not logistical questions, they are philosophical.

Bala December 31, 2009 at 8:11 pm

MichaelM,

” This is long on assertion and short on substantiation. ”

That’s why I called it a clue. That apart, your long-winded but pointless answer that indicates a clear tendency towards legal positivism is sufficient proof that you have no answer to my questions.

Efficiency as a justification for having Copyright Laws when as per your explanation, Contract Law should be enough…. Interesting.

Bala December 31, 2009 at 8:19 pm

MichaelM,

” You need to show how a framework that respects the Rights to Life that include the right to the product of one’s mind would be able to enforce all but that one. ”

You are assuming that a system based on recognition of the Right to Life would necessarily include recognition of the validity of considering ideas and patterns as “property”. That’s precisely what I am questioning. My point is that in the absence of positive law such as Patent & Coyright Law, no system of law would be able to reconcile IP with the Right to Life. To me, it’s an either/or because treating ideas and patterns as “property” and securing them as “property rights” automatically negates the Right to Life.

So, your statement “all but one” is fundamentally incorrect.

Peter Surda January 1, 2010 at 4:22 am

@MichaelM:
> If you buy a book, you purchase a single
> concretization of the abstraction that is the story
> the author owns. That concretization is distinct
> from the abstraction it concretizes.
However, since they are inseparable, there is an overlap. You can’t have the concretisation without the overlap.

Keith Hamburger January 1, 2010 at 1:04 pm

Those that are defending IP based on contract rights have yet to answer my questions as to how, if I observe something without purchasing it or otherwise explicitly agreeing to a contract, the creator has any claim to my violation of said contract.

If I hear a song that has been broadcast or otherwise released into the cosmos and repeat it, how can the creator have any claim to my repetition?

MichaelM January 1, 2010 at 5:03 pm

@ Bala

The right to life is the right of an individual to apply his reason and effort to existence in the service of his life. The values to that individual and/or others that that brings into existence is his to use and dispose of as he chooses.

It does not make any difference whether that value is an idea or labor or embodied in matter or not, it is the value in exchange for which he can demand a wage, a royalty, a fee, or whatever value he can get someone else to voluntarily part with in order to get it.

The distinction among those values you are attempting to impose is entirely arbitrary and nowhere defined by you or substantiated by drawing a logical train of thought back to a valid fundamental ethical base.

As I have already noted, you are utterly concrete bound in your thinking and unable to deal with the abstraction of “reason and effort” from the matter in which it is embodied and the multitude of forms in which it can be applied and exchanged.

It is that inability that prevents you from recognizing that there is no distinction between the right to the product of your reason and effort and the right to life that is also no more or less than the right to the product of your reason and effort.

Since the two are identical, one cannot negate the other and your statement that they can is just an empty assertion.

MichaelM January 1, 2010 at 5:24 pm

@Peter S

“However, since they are inseparable, there is an overlap. You can’t have the concretisation without the overlap.”

The “overlap” refers to an overlap of rights, not to the overlap of the abstraction and the matter.

In the case of a book, the abstraction exists in multiple instances concretized in many physical books. There is no overlap of rights to these concretizations among the buyers, the publisher or the author. Each owns something distinct from the other.

It is in fact the concretizing of it that prevents any overlap of rights by making each unit a unique instance inherently limited to the physical matter that contains it and separate from the abstraction itself.

The error of anti-IP is the notion that merely comprehending a story is somehow equivalent to all the author’s years of effort in establishing a right to own and use it equal to his. It is the same error that the preservationists commit. They hold that their sentimental enjoyment of someone’s building is sufficient to establish their right to control its use and modification .

Bala January 1, 2010 at 6:27 pm

MichaelM,

Here’s where you are going wrong inspite of your claims to a deep understanding well beyond the level of concretes.

You said

” It is that inability that prevents you from recognizing that there is no distinction between the right to the product of your reason and effort and the right to life ”

There can be no “right to the product of your reason” because such a “right” would be a “right to an object” whereas all rights are rights to action.

Just to remind you of what Rand had said

‘Rights are a moral concept sanctioning man’s freedom of action in a social context.’

Rand’s own emphasis in this was on “freedom” and not on “action”. She specifically denied that any right is a right to an object. So, to claim a “right to a product” is absolutely absurd.

So, as long as man is “free” to act, his right is being respected.

You would say “freedom to act” requires exclusivity. That’s where you are going wrong. Exclusivity is required ONLY for scarce objects. When I say “scarce” please note that it means there is and can be only 1 of itself. Please note that I am talking here of individual entities or a collection of them and not conceptual categories. That 1 can be in your possession or in mine but not in both. If I have an apple, you cannot consume it. If I build a house on a plot of land, you cannot build your warehouse on it.

In the case of ideas and patterns, however, the fact that they are not scarce eliminates any need for exclusivity. You are as free to act on your idea/pattern whether or not I have the idea/pattern and act on it. Exclusivity is NOT required for freedom of action. If rights are a recognition of a condition of existence necessary for the survival of man qua man, exclusivity of ideas and patterns is NOT one such condition.

You spoke of my being concrete bound. The truth is that you are failing to understand “nature” and hence you are rebelling against it and becoming a whim-worshipper.

The fact is also that it is in the “nature” of ideas/patterns to be “non-exclusive”. Wherever they are, they scream out loud for any human being ready to apply his reason to grasp them. It is also in the “nature” of human beings to process the percepts they receive into concepts. To live otherwise is to live a sub-human existence.

You proudly claim that your idea is based on the “nature” of man and is hence apt for the survival of man qua man. The sad truth is that you are whim-worshipper ignoring/failing to recognise certain aspects of nature, rebelling against nature and wishing to command nature without first obeying it in the first place. Nature says “ideas CANNOT be exclusive” and you insist “ideas should be exclusive”.

If you say I am concrete bound, you are print bound. You are no different from a religious fanatic saying that his prophet’s word is the last one.

MichaelM January 1, 2010 at 6:28 pm

@ Keith

It is not contract rights that establish something as property. It is property that necessitates the definition of contract rights so that it can be protected.

Your difficulty in dealing with the concept of IP is that you do not have a solid foundation under your idea of property itself. That is evident in your proposal that one can earn the ownership of a song by merely hearing it.

Can an ownership claim be established by seeing and admiring an old building? … repeatedly touching riparian land? … tasting the product of the formula for Coke? … or smelling the scent of Chanel No.5?

By what standard, in principle, is ownership of property rightfully claimed?

Bala January 1, 2010 at 6:55 pm

MichaelM,

” By what standard, in principle, is ownership of property rightfully claimed? ”

I’ll give you one – Ownership comes from the acts of possession and exclusion of others from an entity without the initiation of force against them.

This is a principle rooted in the inviolability of the Right to Life. The “standard” is man’s life and man’s nature.

Jay Lakner January 1, 2010 at 7:28 pm

MichaelM wrote:
“Ownership is retention of the right to use and dispose 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.”

MichaelM. Please define “use”.

MichaelM January 2, 2010 at 12:29 am

@Jay L

In this context “use” means to intellectually or physically act upon something for the purpose of achieving a contribution to the quantity and/or quality of one’s life.

MichaelM January 2, 2010 at 12:47 am

@ Bala

“There can be no “right to the product of your reason” because such a “right” would be a “right to an object” whereas all rights are rights to action.”

No. That right is the right to use and dispose (both actions) of that which your mind brings into existence, as well as to enjoy (also an action) any indirect benefits thereof, such as a reputation.

Jay Lakner January 2, 2010 at 1:29 am

MichaelM wrote:
“In this context “use” means to intellectually or physically act upon something for the purpose of achieving a contribution to the quantity and/or quality of one’s life.”

MichaelM. Please define “act”.

Bala January 2, 2010 at 1:43 am

MichaelM,

” That right is the right to use and dispose (both actions) of that which your mind brings into existence, as well as to enjoy (also an action) any indirect benefits thereof, such as a reputation. ”

None of these requires exclusivity if the “product” of reason and effort we are discussing is an idea or a pattern.

It is the non-necessity of exclusivity that I am accusing you of evading. Conversely, it is the artificial imposition of exclusivity where it is neither necessary nor possible that is leading you to your erroneous position on the validity of treating ideas and patterns as “property”. Acting contrary to nature, i.e., wilfully ignoring the impossibility of exclusivity and subsequently & consequently trying to impose exclusivity, makes you a whim-worshipper.

Peter Surda January 2, 2010 at 6:36 am

@MichaelM:
I’ll try to abstract here a little so instead of answering your objections you’ll here something else.

You accuse IP opponents of being “concrete bound”. I believe it is actually the opposite. IP proponents argue for a limited ability to homestead immaterial features, and not provide a coherent theory to back it up. They argue with causality and similarity as a reason for homesteading, and miss that there are subjective terms that don’t have boundaries. If you argue with “use” and “act”, there is literally no limit in how that can be interpreted. If you follow that argument to the extreme, a single thought can lead to the claim of ownership of all matter in the universe.

The second issue is the economic one, which Bala pointed out. The ability to exclude third parties is not a prerequisite to “use” or “own” an immaterial good. Actually I pointed out some time ago that IP is functionally not a property but market regulation, see pictures:
- http://shurdeek.shurdix.org/tmp/ip.png
- http://shurdeek.shurdix.org/tmp/ip2.png
You see that IP and classical property are disjunct sets, and that what IP proponents usually call “IP” also includes parts of classical property, which invalidates their arguments that do not make the distinction. In order to prove your point, you need to show the causal relationship between the ability to exclude third parties and the pro-IP theory.

Bala January 2, 2010 at 9:26 am

Peter Surda,

” The second issue is the economic one, which Bala pointed out. ”

Oh no!!! Those were the moral arguments, not the economic ones. I wouldn’t ever use economic arguments with an Objectivist.

Just for your understanding (assuming you are not very well-versed with Objectivism), whim-worshipping and evasion of reality are some of the most immoral choices an Objectivist can make.

MichaelM January 2, 2010 at 10:20 am

@ Jay L

To “act” is to exercise a capacity to alter a particular form or relationship of existence.

MichaelM January 2, 2010 at 11:04 am

@ Bala

“Ownership comes from the acts of possession and exclusion of others from an entity without the initiation of force against them.

This is a principle rooted in the inviolability of the Right to Life. The “standard” is man’s life and man’s nature.”

Yes, but what are the particular facts about man’s nature that necessitate the concept of ownership you describe as a means to fulfill the standard that is his life?

Other living entities exercise possession and exclusion of others in the service of their life by initiating the use of force. 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?

Jay Lakner January 2, 2010 at 11:11 am

MichaelM wrote the following:

1. “Ownership is retention of the right to use and dispose 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.”

2. “In this context “use” means to intellectually or physically act upon something for the purpose of achieving a contribution to the quantity and/or quality of one’s life.”

3. “To “act” is to exercise a capacity to alter a particular form or relationship of existence.”

From your definitions, I can conclude the following:
“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.

I have a few questions:
Can an intangible entity ever 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?
When an intangible entity is communicated to another person, is it removed from your possession or does it simply multiply?
Can an intangible entity be removed from your possession?
Can an intangible entity ever be destroyed?

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

MichaelM January 2, 2010 at 11:28 am

@ Peter S

” If you argue with “use” and “act”, there is literally no limit in how that can be interpreted …”

I don’t. Using and acting upon are not the source of the right to treat something as property, they are the benefit thereof.

” The second issue is the economic one,…”

Bala has rightly corrected you on this one. Objectivists do not acknowledge economic arguments for property, because property is a political and therefore ethical concept. Economics is a specialized science that describes men’s choices of action in various circumstances and conditions. It has nothing to say about what they should choose to do.

Consequently, there are no economic questions or answers that are relevant to the derivation of rights.

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