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Source link: http://archive.mises.org/8380/inventors-are-like-unto-gods/

Inventors are Like Unto …. GODS…..

August 7, 2008 by

Recently, re-listening to the 1991 lecture “Ayn Rand, Intellectual Property Rights, and Human Liberty,” by Objectivist attorney Murray Franck, I was struck by one of quotes given in defense of IP. During his lecture, Franck reads (most of) the following quote approvingly:

“When we come to weigh the rights of the several sorts of property which can be held by man, and in this judgment take into consideration only the absolute question of justice, leaving out the limitations of expediency and prejudice, it will be clearly seen that intellectual property is after all the only absolute possession in the world. The man who brings out of the nothingness the child of his thoughts has rights therein which cannot belong to any other sort of property. Land or chattels are pre-existing in some form, and the rights therein are limited in many ways, and are held in the great service of the world, but the inventor of a book or other contrivance of thought holds his property, as a god holds it, by right of creation; with his silence or inaction the sustenance and advance of millions yet to be may vanish into the great darkness again. His brain has brought the seed out of the infinite, planted it in good soil, tended it with the care that only the sower can feel. Surely the world should not deny him a share of the increase he has brought about, and if he, giving the reversion of his property for all time to his race, is granted the product of his creation for half a score of years, he should surely be secured against being plundered by the law as well as by the lawless.”

Franck says the quote is from one “Forvold Solberg” [sp?], “a former register of copyrights”, but my google-fu indicates that the author is one Nathan Shaler, Professor of paleontology and geology at Harvard from 1869-1906, in his Thoughts on the Nature of Intellectual Property, and Its Importance to the State (1878). It’s perhaps a bit ironic that the author quoted approvingly by an Objectivist in support of IP was a racist, one-time Creationist, and author of a book about some idea’s “importance to the state”!

In any event, the latter part of the quote is extremely utilitarian: “the world” should give the innovator or creator “a share” of the wealth he contributes… by giving him a monopoly on it for about ten (“half a score”) years. [For some other choice quotes by Franck during the lecture, he recounts that when he met Rand, when she learned he was an IP lawyer, she told him, "Intellectual property is the most important field of law." Franck also writes: "Man requires property rights to survive, physically and spiritually. That is, as a full-blown man. In the words of Citibank, 'to succeed, not just survive.' As we have discussed, if the creator's rights are not protected, his survival is jeopardized. If another can market his creation, the creator is deprived of the money he wold otherwise earn. That is, his means of production through trade, and therefore of survival. In effect, the creator's personality has been destroyed. For if the infringer can market without the creator's permission, he has substituted the creator's life in the market place by substituting the results of the creator's energy, thought, time, and action. Creation is the criterion of earning and therefore of ownership."]

The first part–about how inventors are “like gods” calls to mind Rand’s embarrassing justification for smoking–that it’s symbolic of fire “tamed” at man’s fingertips.

The quote also emphasizes very explicitly that Randians and other IP advocates believe “creation” is an independent source of rights: you hold your intellectual creation like a god, “by right of creation.”

I note also that Franck says in the lecture that copyrights should survive in perpetuity.

Incidentally, I graduated from law school in 1991, the year of this lecture, and listened to it soon after, about the time I was beginning to practice IP law (1993 or so). I had recently morphed from an initial flirtation with Objectivism to Rothbardian anarcho-libertarianism. I was very interested in this lecture, since I had long struggled with Rand’s weak justification of intellectual property–which was especially troubling since she claimed thatpatents are the heart and core of property rights.” The lecture failed to convince me; I kept searching for better justifications of IP than I’d seen from Randians. After shooting blanks for a few years, I finally came to the realization that I was unable to find a justification for IP … because it’s unjustifiable and contrary to individual rights. By 1995 I had reached my current views on IP, as can be seen in this exchange between me, Franck, and David Kelley, in the IOS Journal: Murray I. Franck, “Intellectual Property Rights: Are Intangibles True Property,” IOS Journal 5, no. 1 (April 1995); Kinsella, Letter on Intellectual Property Rights, IOS Journal 5, no. 2 (June 1995), pp. 12-13; David Kelley, “Response to Kinsella,” IOS Journal 5, no. 2 (June 1995), p. 13; and Murray I. Franck, “Intellectual and Personality Property,” IOS Journal 5, no. 3 September 1995), p. 7 (all of these except the first are here; I find only this bad link to Franck’s first piece).

{ 81 comments }

ktibuk August 9, 2008 at 12:56 pm

Geez,

Is it too hard for you socialists to keep your word and honor your contract?

All pro-private property people want is that you keep your word.

I wrote a novel, I put it on paper and I gave it to you on contract that says you can not copy it but just read it yourself.

If you dont believe you can abide by the contract, then dont buy it from me. Go away and either produce it yourself or find someone that gives you charity.

But if you do buy my book and promise me that you will abide by the rules of the contract, how dare you break your promise and claim the book was your right?

What you IP socialist are doing is defending inter species parasitism.

Alpheus November 5, 2010 at 1:03 pm

Once you read that book, you create a copy of it in your mind–however imperfect a copy–and you can’t help it. Indeed, there are those who have such a fantastic memory that they have a perfect copy of it.

Thus, such a contract cannot be enforced.

Furthermore, the automatic copyright grant from the State is not a contract of any sort. It is a law.

ktibuk August 9, 2008 at 1:04 pm

“Person, you are ignoring the fact that Lamborghini, Rolls Royce and the like make good profits making small numbers of cars entirely on their reputation.”

Not that it is relevant.

But those companies went bankrupt and brought back to life by bigger companies that make millions of cars per year.

BMW owns RR and VW owns Lamborghini.

Marcello August 9, 2008 at 7:09 pm

ktibuk

You are the socialist. You are calling for government intervention in a non existent market.

“I wrote a novel, I put it on paper and I gave it to you on contract that says you can not copy it but just read it yourself.”
um okay

That is a contract and not a copyright. What happens when I sell that book? Can I not give it to someone else to read?

Marcello August 9, 2008 at 7:12 pm

Also. Who are you protecting by forcing your consumer to “honor” such a silly contract? Pirates obviously won’t abide by it, but that doesn’t hurt you in any way. If a pirate makes 100 copies of your book and gives it away for free, he is not hurting or defrauding anyone out of their money.

ktibuk August 10, 2008 at 1:01 am

“That is a contract and not a copyright. What happens when I sell that book? Can I not give it to someone else to read?”

Listen you parasite. There is a contract. It says you can only read it yourself. That is it. You can not do anything else with it. Is it that hard for you to grasp. If you dont like the terms of the contract, then walk away.

Stop trying to defend how my property is your right. But I guess that is what socialist do, isnt it?

Marcello August 10, 2008 at 2:32 am

Okay then the market has proved your contract has failed. No book comes with such a crazy contract.

Lowell Sherris August 10, 2008 at 7:58 am

Andras

You are correct, one cannot just strip another of his property. That would indeed be social engineering. The argument over whether ideas are indeed property is the crux of the matter.

It is easy to define the boundaries of real property. This pencil is mine; it is obvious where the boundaries of the pencil end. This house is mine; here is the survey indicating the exact boundaries of my land.

The boundaries of an idea are fuzzy and arbitrary. That’s why there is so much IP litigation and threatened litigation. That’s why IP legislation has such a chilling effect on innovation.

If I homesteaded some property and then claimed all the land as far as the eye could see you might object to my claim. In many cases IP claims are just as unreasonable. IP ownership is simply a monopoly privilege granted by the state. It is no more right or proper than the state’s granting of liquor licenses or taxi medallions.

Andras August 10, 2008 at 11:51 am

Lowell,
(we may go off-line as this blog seems dying though I think it is great as the noise goes down)
I agree again. Ideas as Property is the crux. I have granted that this proposition might be imaginary. But even if it is just that you could expect a tremendous fight. Let’s consider historic precedents. In the middle ages, the Catholic Church had the same claim on the same. It took centuries of a bloody fight to change that. It almost obliterated the entire European culture. Are you ready? Are your arguments solid enough? I see big holes in your arguments in the field I know. I grant again the current system is not perfect but it works. It is what you said, a monopoly privilage. It is even declared that by the government. That is what they promise you for socializing your invention. It is an exchange as you do not have to patent.
I think it is a good idea to give an abstract of the pharmaceutical research because there are so many preconceptions out there. It is just a brief summary, in reality it is much more complex. Then you can decide if it is a property and your (Kinsella’s) system would work better. And I let you persuade me.

1) Target Validation: Biologist identify a biological target: enzyme or receptor control of which brings advantegous medical effects.
2) Hit Identification: Test millions of chemicals to find effects under in vitro assay conditions.
3) Hit to Lead: evaluate the best hits and make small focus libraries with the biology in mind then assay them further.
4) Lead Optimization: select the best leads and develope them to drug candidates. It usually involves making thousands of compounds testing them in at least twenty dimensions of chemistry, biology and pharmacology to satisfy expectations in drug (animal) efficacy, absorption, metabolism, safety etc.
Usually this is the stage IP is patented. By this time hundreds of millions might be spent. Then it enters the human trials in the cilinics. Average development cost is around $1.2B partally due to the fact that the failing rate is about 90% after stage 4. (Less than 1% of the hits will be drugs.)
What you patent is the chemical structure class with the pharmacological effect to protect your IP. When you come out with your drug, the active ingredients can be determined in five minutes with our modern analytical methods. Almost anybody can understand, copy and commercialize it in weeks if it is not protected. Entire industry is built on that called generics. You have about 5 years to recover your costs. That is how many left from your 18-20 years after patenting and the clinics. You see the structure patented is just the summary of all the above information packed in it.
You can try to keep it a secret though it involves hundreds of people.
This was the inventors’ side. You can imagine the investors’ side as well and ask why should they invest if they have no insurance even if they succeed in finding something new?
I don’t think benevolance will go too far here.
So what is your alternative?

Curt Howland August 10, 2008 at 2:05 pm

Hey, folks, ktibuk’s “contract” is not so far fetched as y’all seem to think.

His “You, and only you, may read this book” contract is just what Microsoft puts in their EULA.

So, anyone using Windows here and giving ktibuk a hassle at the same time? I thought so.

Alpheus November 5, 2010 at 1:08 pm

I hate Windows. I try my best to avoid it; but, unfortunately, it’s everywhere.

But I also use Linux, and often I don’t even realize it: it’s also everywhere, because it can go places where something bound by an EULA cannot go!

nick gray August 10, 2008 at 10:18 pm

Here is an idea I came across earlier- that real property is simply another form of intellectual property! After all, birds know nothing of our property rights- fences are just places to rest, for them. There ain’t nothing natural about our property laws! Lots of life-forms have territory, but this is usually marked by urine and spore- cats have a scent gland on their chins, and they are marking you as theirs if they rub your face with theirs. I’ve never heard of any other creature drawing lines in the sand or dirt, and pretending the line was a real barrier!

Alpheus November 5, 2010 at 1:10 pm

A bird high up in a tree would swoop down at me and others in my family if we got too close–I have a funny feeling that this bird was defending some sort of property right.

Marcello August 10, 2008 at 10:25 pm

You’ve honestly never heard about an animal having territory? Go into the den of a lion and tell me that. Typical socialist rhetoric.

Property is a scarce resource that requires an owner to utilize it to the full potential. Ideas no know bounds, they are free to everyone and that’s why IP laws try to artificially create scarcity by stifling innovation. We don’t live in fairy tale world, this is the real world with tangible property.

nick gray August 11, 2008 at 12:23 am

Ideas do seem limitless (excluding talk of memory storage space), and physical property is limited. Therefore, leave ideas alone, but their physical expression can be regulated, since matter is limited. Problem solved!
Here is another solution- Public Intellectual Property. I am a minarchist, because I think we should convert local governments into property-owners- they own the spaces called ‘public’. (Someone will own the roads, after all!) The owners of property can control whatever happens on it, or through it, so Public Intellectual Property would be the only type which you could publicise on media going through public spaces. So my solution would entail a licence to publicise whatever you invented. People could still work in private on their own versions.

Lowell Sherris August 11, 2008 at 11:32 am

Andras

I grant again the current system is not perfect but it works. It is what you said, a monopoly privilage. It is even declared that by the government. That is what they promise you for socializing your invention. It is an exchange as you do not have to patent.

First of all, I disagree that the current system works. The price of prescription drugs is completely out of control. I used to worry about prescribing medications for individuals without insurance. Now, many of my insured patients can’t afford the deductibles.

I am glad we agree IP is a government invention involving special privilege for the purpose of “socializing” inventions. Your description of the costs involved in bringing a drug to market are of course correct in our present society. But this would change drastically without the FDA and IP laws. I do not depend on the good will of individuals to develop new medical treatments any more than I depend on the good will of manufacturers to bring shoes to market.

Right now I am finishing my third reading of MIses’ Human Action. I am just beginning to understand the enormous concepts involved. Individual freedom produces the most human “happiness,” and government action is always the antithesis of freedom. I cannot prove it, but I am convinced the abolition of IP laws as well as government interference in virtually all aspects of society would improve the quality of our life. I truly believe that without IP, the FDA, or other government interference in health care, cancer would be eliminated in 10 years.

Obviously I cannot convince you my beliefs are true. My ability to employ praxeological arguments is very limited. Your arguments would seem to indicate your familiarity with Austrian economics is superficial. Unlike the pap emanating from the mouths of most politicians, the truths of Austrian economics are not readily apparent. Read some of the enormous resources available on the Mises website.

MichaelM August 11, 2008 at 5:58 pm

This thread provides an exemplary verification of Ayn Rand’s contention that libertarianism not grounded in philosophy — specifically ethics — is as prone to embracing tyranny as is liberalism and conservatism. It also illustrates the futility of attempting to fashion a politics out of concrete-bound pragmatism that persists in the false idea that wished-for ends justify all means imaginable.

For any newbies to secular morality on board, a quick review of the basics:
Man survives and flourishes solely by the values that are the product of his intellect and his physical actions. The recognition of that fact requires in ethics, that autonomy — the moral right to one’s own life on one’s own terms — shall be a virtue, and that in turn requires a politics of freedom. Politics is the extension of ethics in the context of an individual’s own life into the context of an individual’s life in a society of other men. The moral necessity to preserve one’s own autonomy in that extension and the responsibility to reciprocate implicit therein demands a politics in which no man may take, withhold, or destroy by physical force any value owned by another, i.e. laissez-faire capitalism. Capitalism is not the good because it works — it works because it is an implementation of the good.

Note the word values. That and only that is what a human can own: self-created value. The only way that a human being can morally acquire a value created by another is to trade for it in a voluntary exchange of values. In such an exchange, the terms are entirely up to the owners exchanging. No other human being can justify by reference to any moral principle a claim to be a party to the exchange nor the terms of the exchange without the permission of the principle parties.

Whatever political solution anyone conjures up in regard to the ownership of the products of the minds and bodies of men, to be moral, it must conform to the above principles. And in this thread it is ktibuk who has most accurately named the morally operative principle:

“If you dont believe you can abide by the contract, then dont buy it from me. Go away and either produce it yourself or find someone that gives you charity.
But if you do buy my book and promise me that you will abide by the rules of the contract, how dare you break your promise and claim the book was your right?”

In a moral society of men, all exchanges of values — ideas, physical objects, love, respect, friendship etc. etc. — are implicitly contractual and shall be voluntary. The government’s only job is to protect the contractual rights of those who exchange values. If you the creator wish to limit the length of your idea’s protection when you sell it in order to open it up to further development, you may, because that act does not take anything from anyone else by force. If you who oppose IP protection want to shun the creator who negotiates protection you view as excessive and/or boycott businesses that supply him with the necessities of his life or withhold your buying power or influence from any other involved businesses, you may. But no one may advocate that the government alter or nullify the terms of a voluntary exchange without implicitly forfeiting the moral right to his own life. As Rand was so fond of saying, you can’t have your cake and eat it too.

——————————-

To pursue this principle that the owned is only the part that is self-created to another level, consider the homesteading of previously unowned land. Occasionally in the past the initial standard to claim such land was properly defined as the addition of a significant improvement. That is proper, because acquiring control of land cannot be justified by merely claiming the land itself. The claimant did not create it. Rather land is justifiably controlled because it is the repository of value created (the improvements) — a value that morally may be defined and regulated solely by a free market per the laws of supply and demand. After being initially owned, it will in exchanges continue to be the repository of value created that previously resided in the money that was paid for it, even if the initial improvements are removed and the land is held vacant.

A broader statement of this principle is that man may own neither matter nor facts. Rather, objects of matter may be controlled to the extent they are the repository of values created and ideas concerning facts may be controlled to the extent that they constitute unique formulations about them.

Andras August 11, 2008 at 8:34 pm

Lowell,
You must be better than this. There is nothing praxeological in stating that it is true because I believe so. Your main argument seems to be that prescription drugs are expensive:
“The price of prescription drugs is completely out of control. I used to worry about prescribing medications for individuals without insurance. Now, many of my insured patients can’t afford the deductibles.”
Just wait till they are “free”. I agree they are expensive. They have a very high value, the reason you want to use them. Sometimes their value is as high as that of your life. These are the lifesavers. Right now you still have a choice. If you want to tinker with their price now and “bring in control” you will destroy the future opportunities.
In the drug discovery process I outlined in the previous letter there was no mention of the FDA. Those are common sense research guidlines. The FDA is just an extra burden and overhead cost. You have to realize that for high values you need high investment with a hope of high returns. So far what you offered is only a removal of the investors (capitalists) from the process. It will hardly decrease costs and prices. The US is the last stronghold of pharmaceautical research. This is one reason why. I agree there should be a better and cheaper way. Enforced (government) regulations surely increase the price. But our discussion was about whether there is such a thing as IP. And you did not offer any argument yet other than not being physical.
I have a side question. Let’s assume you are an oil/gold exploration company. You find oil/gold on the land you have claimed exploration rights. You again own nothing. Is there a value of your find? How do you ensure it? You may establish contracts, first rights and patents. Similarly can you move the IP universe to overlap with the contract universe (thus to property rights accepted even by Kinsella)?
P.s. I own and have read almost everything available from Mises, Hayek and Rand. But this should not be an argument.

Michael A. Clem August 12, 2008 at 10:14 am

In a moral society of men, all exchanges of values — ideas, physical objects, love, respect, friendship etc. etc. — are implicitly contractual and shall be voluntary.
While this is essentially true, I see a fundamental epistemological problem as it relates to IP: you can share love, friendship, respect, etc, but you can’t own those things. So no, Rand did not adequately address IP with her talk of values.
Kinsella has a point about non-scarcity, but I’m not sure that adequately covers the topic, either. The true essence of IP still seems elusive.
If the value of land and other “real” property is what people do with it, then the value of IP is ALSO what people do with it–not the idea or design itself, but what use it is put to. Somehow, this seems more essential to me, but still insufficient to properly define the issue.
It’s not that a writer created characters and a plot, but that he wrote a story using characters and plot, and style and theme. Thus, the story itself should have protections, but that doesn’t grant the writer a monopoly on the separate aspects of characters, plot, style or theme.
Likewise a songwriter uses notes, melodies,chord progressions, rhythms, etc., but only the song as a whole should be protected, not those individual elements.

Lowell Sherris August 12, 2008 at 5:57 pm

Andras

Just wait till they are “free”. I agree they are expensive. They have a very high value, the reason you want to use them. Sometimes their value is as high as that of your life. These are the lifesavers. Right now you still have a choice. If you want to tinker with their price now and “bring in control” you will destroy the future opportunities.

I do not want to tinker with the price of pharmaceuticals. I would like to allow open competition of the development and sale of drugs. Right now government mandates restrict competition and raise costs. If we eliminate those mandates, which I believe are unjustified, the cost of medications will probably come down. Since I do not believe ideas are property, I do not think this will infringe on anyone’s property rights. You make the assumption eliminating these monopoly privileges will destroy future opportunities.

In the drug discovery process I outlined in the previous letter there was no mention of the FDA. Those are common sense research guidlines.

Here, I am going to disagree about common sense research guidelines. There is a good chance we could lower the number of auto accident fatalities if everyone were forced to drive a Volvo or Mercedes. However, the cost would be prohibitive for most people. I would not consider a rule forcing people to drive only the safest cars to be a common sense guideline.

Similarly, your guidelines for drug research are prohibitively expensive. An unanticipated result of our drug approval process is the huge profits possible motivate drug companies and researchers to bend the rules and fudge results.

So far what you offered is only a removal of the investors (capitalists) from the process. It will hardly decrease costs and prices.

I wonder how Linux became so sophisticated and advanced with IP removed from the picture. In a world without IP there would still be pharmaceutical investors, and there would still be profits. Without IP, the investment required to bring a drug to market would be much smaller than the estimated $1-2 Billion required now. Of course potential profits would be smaller.

The idea is not to formulate the government policy that will produce the best drugs at the lowest price. That doesn’t work. It should not be the province of government to manipulate the actions of individuals in order to accomplish its goals. I would like to give individuals the unhampered freedom to act in order to provide me (and everyone else) with a choice of effective drugs to use. I have faith that human nature alone, without government direction, will accomplish that task in the most efficient manner.

But our discussion was about whether there is such a thing as IP. And you did not offer any argument yet other than not being physical.

The argument is indeed whether one can own anything that is not physical. I am not sure how to define an idea. How can you own something that cannot be easily defined? A physical entity an be possessed. My wallet is in my pocket. My family and my house are on the land I homesteaded. This makes sense to me. You can’t build that mousetrap. I had a similar idea and the government gave me monopoly privilege over its production and marketing. Sorry, that doesn’t make sense to me.

Let’s assume you are an oil/gold exploration company. You find oil/gold on the land you have claimed exploration rights. You again own nothing. Is there a value of your find? How do you ensure it? You may establish contracts, first rights and patents.

You talk about claimed exploration rights. I would not invest time and money looking for oil/gold unless I had secured property rights at that location. I would either buy the land, negotiate exploration and development rights with the owner of the property, or else homestead property if it were not previously owned. So I do not own nothing. Now I have discovered oil/gold in an area where I can justly develop my claim and make a profit. In our world I ensure my claim by having the government protect my property rights. In an ideal world my private insurance/protection agency would ensure my property rights.

What if I were to develop of cogent theory of where to drill for oil? Suppose I could predict with almost 100% accuracy the best places to drill. Even if someone used my theory to drill for oil on his land, I would not have a claim to his oil. I suspect you disagree.

Andras August 12, 2008 at 9:54 pm

Lowell,
Great discussion.
Those research guidelines were not mandated by the government. They developed with the industry over almost a century. Just simply ignoring them would be foolish. I admit the ever increasing government regulations make the price prohibitively expensive. But our discussion is about the research before these. And the results of this research. It seems you miss the physical. If by physical you mean concrete you get it in a patent. It is formulated in concrete terms: structures, procedures. Then they are not naked ideas any longer. What you do with your ideas and their concrete manifestations is your personal decision. I’d like to keep them as this is my life and honestly I still don’t think I am a parasite.
Linux is a great example. However its capital demand is miniscule comparing to drug development. This idea is practiced in academia and the results are also miniscule. You have to understand, drug development is expensive with or without IP rights. Go to supplements, they are cheaper.
Back to oil exploration. Buying the land would be great. Just it is not available. 90% is government property. Yeah, you can start fumbling about homesteading the high seas etc. Tell this to the government, then we will not even start exporation for the next 50 years.
You shoot.

nicholas gray August 12, 2008 at 10:47 pm

Lowell, my last post answered you! The physical world is limited, therefore regulated. Ideas might be free, but their expression in matter involves costs.
And I think that Public IP would be a libertarian solution. On our lands, we should be able to make what like, including copies of things we have bought, BUT we could only publicise these across public spaces if we had a licence or copyright. My position is halfway between both camps.

MichaelM August 13, 2008 at 1:28 am

“I see a fundamental epistemological problem as it relates to IP: you can share love, friendship, respect, etc, but you can’t own those things.”

Love, friendship, and respect are not “shared”. They are payments to other persons for holding and acting on values much like your own. Those values are definable, but not easily, because they are more often manifested in an overall sense of life. And you certainly do own them. Who else has total control over how you dispense your love and friendship but you? You are the originator. You are the owner. You set the terms by which others will earn them. They are your IP.

————————

“If the value of land and other “real” property is what people do with it, then the value of IP is ALSO what people do with it–not the idea or design itself, but what use it is put to.

The value of land is not (in your words) “what people do with it.” It is its being (in my words) “the repository of value created.” An idea and a design are values created. Labor is a value created. What people do with ideas and labor is they make products with them that have a value in the market that equals whatever someone is willing to pay for the sum of all of the ideas and labor they represent. The raw materials in any product of man were worthless until he applied his ideas and labor to them.

The right of every man to the product of his mind and his actions is absolute. Persuading men to deny that principle is a tyrant’s first order of business.

Michael A. Clem August 13, 2008 at 10:04 am

MichaelM, I still don’t see how values discussion is related to IP. You seem to be agreeing that an idea and a design are NOT ownable, only the “repository” of ideas and designs.

MichaelM August 13, 2008 at 12:44 pm

The right to your own ideas and actions is absolute. You own them with or without being applied to a physical repository. You may exchange them on your own terms with or without applying them to raw materials.

If the raw materials were processed by others prior to your application of your ideas to them, then they already are the repository of the ideas and actions of those who discovered them, extracted them, and processed them. The application of your ideas by you or by anyone who purchases them from you will constitute value added to that.

No matter how long this chain goes on, the original raw materials, though inseparable from the ideas and labor applied to them, contribute nothing to the value of the product. Control of them is only incidental because they are inseparable and because no one else can claim to control them, since no third party has contributed any ideas or actions to the result.

Ownership is a political (socio-economic) principle. As such, it only has validity in reference to the consistency with which it applies a valid ethical principle. The operative ethical principle in this case is the necessity for all humans to sustain the independent exercise of their reason and action. Those who fail to get their philosophical — specifically ethical and political) principles in sync with reality and each other on this issue are ipso facto sitting ducks for any tyrant who can present a convincing argument that some pragmatic end can be achieved if they would just forfeit a tiny bit of that absolute right to own their ideas and actions.

Michael A. Clem August 13, 2008 at 2:00 pm

The right to your own actions is clear enough–if you don’t do them, then they’re somebody else’s actions, not yours. The right to your own ideas either follows the same trivial reasoning, or else is still unclear and vague.
Suppose I have an idea for an improvement to the autoharp (and, in real life, I do have such an idea). Yet suppose someone else has the same idea for the same kind of improvement. We clearly each “own” our own idea, because we each thought of it independently of the other. But I have no right to stop him from using “his” idea, and he has no right to stop me from using “my” idea.
But suppose I had the idea, and he came by my house and I explained the idea to him, no stipulations, no contract. The idea originated with me, not with him, so it wasn’t his idea. Do I have a right to stop him from using my idea? I don’t see how, even though it is clearly my idea, not his. In what way or sense is the ownership of my idea absolute?

MichaelM August 15, 2008 at 1:23 am

I’ll opt for the same trivial reasoning: Your ideas are actions too.

Your right to your ideas and actions is absolute in a moral sense, meaning that it is yours whether or not you are fortunate enough to live under a government that protects them. And it is incumbent on a government to guarantee that right in the political context as perfectly as possible. How well it is actually protected will depend on how well defined the laws are and how efficient their enforcement is. But in any case, such protection will necessitate some kind of requirement for objective documentation that you were the first to produce the idea.

Thus, while two people could believably have the same idea at the same time independently, it is highly unlikely that they could both document it as occurring at exactly the same time. In that unlikely event, joint or separate but equal ownership would be a valid solution.

In the second example, your moral right would remain intact, but you would have forfeited your legal right to enforcement of it by not documenting it in some way that could verify your later claim to it. If on the other hand, you did and can document it, yes you can sue to stop his use of your idea.

ktibuk August 15, 2008 at 3:13 am

“Thus, while two people could believably have the same idea at the same time independently, it is highly unlikely that they could both document it as occurring at exactly the same time. In that unlikely event, joint or separate but equal ownership would be a valid solution.

In the second example, your moral right would remain intact, but you would have forfeited your legal right to enforcement of it by not documenting it in some way that could verify your later claim to it. If on the other hand, you did and can document it, yes you can sue to stop his use of your idea. ”

If more than one person comes up with an idea, they don’t need to document anything to anyone, de facto that is.

If one of those people claims the other one copied his/her creation, then the burden of proof is on the accuser.

This may mean some intellectual creations can not be protected by the creator, or his representatives, but that is the inconvenience of circumstances (reality), not an ethical problem. You can not stop every crime and enforce every law whether there is a state or not. But knowing what is a crime and what is not is a separate thing.

Thus you don’t need a state to have IP, which is based on contractual copyright agreement. Rothbard had this exact view. And he was not confused, as Kinsella arrogantly claims on thsi subject.

There are many problems with the patent system because the system was design by statists, ie socialists. But this faulty system can not be an excuse to steal songs, movies, novels, software, trade secrets, etc.

Also whenever IP socialist attack IP, they talk about ancient creations like, fire, wheel, etc. They claim if there was IP these common goods wouldn’t be around.

Leaving aside the independent discovery issue, don’t you feel gratitude towards the ones that found the wheel? If so, this actually means acknowledging the right of the creator. He gives you something and you give your gratitude whether he is alive to receive it or not.

Or are you IP socialists claim who ever invented these things owed them to you?

Michael A. Clem August 15, 2008 at 11:28 am

If on the other hand, you did and can document it, yes you can sue to stop his use of your idea.
But this is where Kinsella’s point about non-scarcity is significant. The idea itself is non-scarce: it can be passed on or duplicated thousands of times with no loss of use to the originator of the idea.
The real value of my idea is in putting it to use, actually developing the necessary mechanism for the autoharp to utilize the idea. That’s what takes real, physical resources. And suppose I create such a mechanism, but don’t do a very good job of it, while someone else who got my idea creates a much better mechanism? Does the fact that his mechanism is better make it his, or is he still violating my rights, somehow? He’s not stopping me from making and selling my own mechanism. And if his is better, doesn’t his mechanism deserve to win out on the market place?
Don’t get me wrong, I think there is a place for IP, but it seems to me that it’s a much more limited protection than most people make it out to be, and I’m trying to understand where those limits are. And, as others have pointed out, such IP protection must be possible in the marketplace, without a government to enforce it.

MichaelM August 16, 2008 at 11:21 am

ktibuk: “If more than one person comes up with an idea, they don’t need to document anything to anyone, de facto that is. If one of those people claims the other one copied his/her creation, then the burden of proof is on the accuser.”

Correct. My “document” was not intended to mean with the government. I meant do something with it public enough to be able at a later date to meet the burden of proof that you were first, even if that is only showing it to a third party under contract not to copy it.

“Thus you don’t need a state to have IP, which is based on contractual copyright agreement.”

By itself, this statement is true. The state will not be needed until force is necessary to regain value lost to IP theft.

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Michael A. Clem: “But this is where Kinsella’s point about non-scarcity is significant. The idea itself is non-scarce: it can be passed on or duplicated thousands of times with no loss of use to the originator of the idea.”

No, that is where Kinsella’s point about non-scarcity is irrelevant. The originator/owner of an idea and any buyer of it will define its scarcity in the process of effecting a voluntary exchange. No one else may claim a right to confiscate the idea by devaluing that definition.

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If you create and protect an idea and someone improves it, they get to protect the improvement.

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“And, as others have pointed out, such IP protection must be possible in the marketplace, without a government to enforce it.”

You cannot protect IP without being able to use defensive force against an intransigent violator. Whatever you call it, you must have a neutral third-party institution to objectify that use of force. “Objectify” means 1) that the laws and methods of their enforcement shall be objectively defined and publicly known, and 2) that the use of force accordingly shall be universal and predictable within some specifically defined geographic region.

ktibuk August 16, 2008 at 12:59 pm

Scarcity argument is not significant at all. It is really irrelevant.

Kinsella claims scarcity is prerequisite of property. This is obviously false.

According to this logic, if you build a 1000 seat theatre in a city of 500, you can not own the seats, thus the theatre because there is no scarcity of seats.

Economic scarcity in many tangible stuff, as well as intellectual stuff, is artificial. And there is nothing ethically wrong with artificial scarcity.

Also one more thing about ideas.

Many people assume ideas are pure abstract, but they are not. Ideas, even when in someones head, are always in interaction with tangible matter. They dont float around in nothingness, multiply by themselves and are picked off like they are some fruit.

So “ideas are not scarce” is irrelevant in that sense too. Because in real life, in this universe, there are no “ideas” that are not somehow tied to matter, whether they are in the brain neurons, in the soundwaves, on paper, on magnetic tape, or some digital medium.

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