Comments (107)

• David Bratton

  Stephan FYI there was an article in the Boston Globe about a countersuit against the RIAA. Billion Dollar Charlie vs. the RIAA

  It's amazing how these cases seem to crumple when one of the defendents actually has a lawyer.
  

  Published: November 21, 2008 6:07 PM

• Andras

  Stephan,
  How do you fit your argument to homesteading? What had you owned of that property that made it yours?

  Published: November 21, 2008 6:23 PM

• Jason

  I consider myself to be an Objectivist, and I happen to love the Ayn Rand Institute. However, I do believe Ayn Rand had it wrong on intellectual property. I absolutely believe that it is intelligence and creativity that creates wealth, but I do not believe that those things are what creates *property*. I believe it is because an individual needs to apply his reason and creativity to make the most of his physical resources that creates the argument against intellectual property. Why should a person not be able to apply his knowledge, however acquired, to the transformation of his own resources for the furtherance of his own life just because someone else got to the patent or copyright office first?

  A person who is first to market with an idea will still make plenty of money and "control, trade, and profit from the work of his mind."

  Published: November 21, 2008 8:26 PM

• James Joyce

  @Andras,

  Not to speak for Stephan, but I believe homesteading is based on the idea that no one had previously owned that property, and therefore no one has a higher claim to it than you if you mix your labor with it.

  Published: November 21, 2008 8:33 PM

• Anonymous

  Stephan,

  I would also note that Johnson's "loaf of bread" analogy had nothing at all to do with IP. He didn't claim that the baker owned the shape of the loaf or the baking process itself. Pretty sneaky, if you ask me.

  Published: November 21, 2008 8:42 PM

• Anonymous

  Stephan,

  I would also note that Johnson's "loaf of bread" analogy had nothing at all to do with IP. He didn't claim that the baker owned the shape of the loaf or the baking process itself. Pretty sneaky, if you ask me.

  Published: November 21, 2008 8:44 PM

• Frank

  As someone who is relatively new to libertarianism, I'm totally perplexed and turned off by all the infighting of the different libertarian factions. This is the second attack I've seen on "Randians". (I'm currently reading "Atlas Shrugged" as a starting point for Ayn Rand and objectivism--I figured if people are attacking it, I should learn more.) I've also seen a few attacks against the Cato Institute, which planted the seeds of libertarian thought with me over a decade ago via two books published under its name, the most influential of which was "Kindly Inquisitors: The New Attacks on Free Thought". I embrace a marketplace of competing ideas, but I think that focusing on differences and establishing a false dichotomy (an "us-versus-them" mentality) rather than similarities confuses neophytes and hinders recruitment to the libertarian cause.

  Published: November 21, 2008 11:11 PM

• a Duoist

  If human creativity does not create property, what does, other than force?

  An agreement to bake another's dough into bread in no way makes the resultant loaf the property of the baker, unless the terms of the agreement are broken by the owner of the dough, who will have to give up the bread if he does not pay for its baking. The baker is paid for his time, labor, and 'skill,' and very likely does NOT want to be paid in bread.

  But the other dough owned by the baker and not owned by a customer IS the baker's property, whether the dough if merely a lump of grain or a cooked loaf, or discarded burnt toast. The 'property' accrues to ownership, and unless the ownership is the result of force, the ownership is the result of creativity: creativity in designing and making an oven, which satisfies the wants of himself and others. It is the oven which transforms dough into bread, and the oven is entirely the result of human creativity; otherwise, put the dough out into the sun and try your luck.

  I'm surprised to see a facet of libertarianism discredit human creativity as a grounds for property, especially since libertarianism is grounded in its opposition to arbitrary force.

  Published: November 22, 2008 12:54 AM

• theblob

  Frank, I know the infighting can be very annoying, but you better get used it. Its hard to find two libertarians who agree on everything in political philosophy.
  I was very surprised about some peoples reaction on the Internet, when I'm/someone is arguing for free markets.
  But then I read the Reason blogs and it's comments, and I realised that their critisism was directed to this type of libertarians, and I fully agreed with it.
  For a libertarian following the austrian school it is very hard to get associated it with people that support central banking, or the iraq war and stuff like that.
  So you constantly have to clarify your points and defend your brand of libertarianism.

  Published: November 22, 2008 1:12 AM

• College Parasite

  I would add that the fact that libertarians are always arguing against each other is a fairly obvious sign that they don't give up on their beliefs so easily. You know, as opposed to those Sunday barbecue talks (or Congress talks, there doesn't seem to be much of a real difference) where everyone seems to change their opinion every five minutes.

  Published: November 22, 2008 1:49 AM

• Jonbostwick

  "If human creativity does not create property, what does, other than force?"

  Homesteading.

  If I steal your dough, then bake it myself, do I own the bread? No, creation does not create a property right.

  Published: November 22, 2008 1:50 AM

• Stephan Kinsella

  There's a great comment on this same post over on Against Monopoly, by "Jesse":
  

  
  Ah yes, the old sweat of your brow, fruits of your labor ploy.

  "If a farmer plants a field of carrots, is he not entitled to the carrots he has grown?" the copyright apologists ask. Well, sure, but the hired hand who tills the soil, plants the seeds, and harvests the carrots is only entitled to what the farmer has agreed to pay him, even though it's his brow getting sweaty while the farmer's brow is dry. Because the seeds, soil, and fertilizer belong to the farmer, not the laborer.

  And if you ask the same question of any job that doesn't involve turning raw materials into finished products, it falls apart completely. Is a house painter entitled to the houses he paints? Is a valet entitled to the cars he parks? Is an accountant entitled to the numbers he crunches? Of course not.
  

  Published: November 22, 2008 9:57 AM

• Lester Hunt

  Frank, theblob: Spirited disagreements among ourselves is healthy, but exaggerated acrimony is not. I know that Objectivists (of which I am one, sort of) do this a lot, but that doesn't mean that returning fire is a good idea. Sometimes turning the other cheek is the best course to take.

  Published: November 22, 2008 11:41 AM

• Keith

  Quote from Frank: "As someone who is relatively new to libertarianism, I'm totally perplexed and turned off by all the infighting of the different libertarian factions."

  As a not so new libertarian, I tend to agree with you. I remember reading "Radicals for Capitalism" and coming away with the main impression that they were all a bunch of prima donnas.

  I think Mr. M. Zachary Johnson is completely wrong, but often the discussion on these differences become self destructive. I hardly think that IP is on the top of the list of problems with our current government.

  Published: November 22, 2008 2:04 PM

• Michael Smith

  This is a straw man argument -- a misrepresentation of the Objectivist position.

  Objectivism does hold that creation -- an act of production that yields a new value -- is the source of the right to own that value. But obviously, this presupposes that one owns any raw materials that are used in the process. In fact, baking a loaf of bread with stolen dough is theft by conversion/alteration -- which means, it is not an act of creation in the sense that Objectivism uses the term, but is instead an act of destruction -- the destruction of another person’s property.

  So the example of baking a loaf of bread with stolen dough is irrelevant to the issue of how property rights are acquired.

  Now, you say that creation has nothing to do with the baker’s ownership of his loaf. Instead, you say that the reason the baker owns the loaf is because he owned the dough, proving that creation is not necessary to create property rights. But how did the baker acquire the property rights to the dough? There are several ways he can do this, but in each and every case -- in a free society -- the baker (or someone) has to engage in a process of creation, in some form or another, to acquire that property right.

  For instance, to acquire the dough by purchasing it, the baker must first acquire the money. In a free society, the way to do this is to offer someone else a value of some sort in exchange for their money. Perhaps the value the baker will offer is his labor performing work for someone else -- in which case, whatever the baker‘s labor is employed to create constitutes a value that did not exist prior to the baker‘s effort -- a creation which someone values enough to trade their money to the baker for it. Whether the baker is hired to dig a ditch or to mine gold, the thing that gets created or produced is what is traded for the money. Hence, an act of creation/production is required to acquire the property right to the money to buy the dough.

  Or perhaps the baker creates a cake -- using materials he properly owns -- and sells it to someone else to acquire the money. Once again, an act of creation was required.

  Or perhaps someone gives the baker the money as a gift or leaves it to them as an inheritance. Even in these cases, the giver or leaver, assuming he has valid title to the money, had to go through some similar process of creation/production to get the money.

  Thus, one way or another, ownership requires a preceeding act of creation, an act of production.

  And your “counter examples” make no sense:

  And if you ask the same question of any job that doesn't involve turning raw materials into finished products, it falls apart completely. Is a house painter entitled to the houses he paints? Is a valet entitled to the cars he parks? Is an accountant entitled to the numbers he crunches? Of course not.
  
  No, the house painter is not entitled to the house he paints. He’s entitled to the money he was promised in exchange for what he created/produced, namely, a fresh coat of paint on the house. Likewise with the valet and the accountant. The value they created consisted of parking a car and creating financial statements, respectively, and they are entitled to the money they were promised for so doing.

  Why do you think such examples prove that property rights can be acquired ex-creation or ex-production? They prove the opposite - they prove that to acquire the property right to the money they were promised, the painter, valet and accountant must create/produce the value they promised in exchange for that money.

  Objectivism holds that the same creation/production principle applies to establishing ownership of un-owned natural resources -- like land. Since ownership is the right to the exclusive use and disposal of something -- ownership of previously un-owned land requires that it be brought under man‘s control, so that use and disposal become possible. Merely walking across a piece of land doesn’t accomplish this. To establish ownership, you must transform it into some sort of useable/disposable asset that is under your control.

  For instance, if you fence off the un-owned land in question to identify its boundaries (no, I‘m not saying that fencing it is necessary, only that there must be some identification of its limits), then proceed to farm it, you have created a material value that did not previously exist -- a farm. Then you may claim ownership. Or, if you plant timber for harvest -- or dig a mine to extract the land’s minerals -- or seed the land and use it to raise cattle -- all are acts of creating a new material value which enables ownership.

  Yes, there are still issues to be resolved, such as what percentage of the land must be farmed before you can claim ownership of a given area -- but this is a detail that does not pertain to establishing the principle by which property rights are acquired.

  It is a mystery to me why you oppose the Objectivist position that the creator -- the producer -- of any value is the proper owner of that value (assuming he hasn‘t violated someone else‘s rights in the creation/production process and assuming he hasn‘t agree to trade away the value in exchange for money; it shouldn‘t be necessary to say that, but apparently it is). As shown above, whatever route is taken to properly acquire property, an act of creation/ production is required.

  Nor do I understand the opposition so many libertarians have towards intellectual property rights. They often point to patents that should never have been granted as examples of the abuse of IP. Well, yes, those abuses ought to be corrected. But no one would argue that the existence of some bad laws -- such as the laws against drug use -- is a reason to ditch all laws, including, for instance, the laws against murder, rape and theft.

  They also demand to know why intellectual property, if it is indeed property, must have a finite life. Ayn Rand explains this in Capitalism: The Unknown Ideal. I’ve never heard them refute her explanation; rather, they simply seem to be unaware of it.

  Published: November 22, 2008 2:38 PM

• MichaelM

  James Joyce said: "Not to speak for Stephan, but I believe homesteading is based on the idea that no one had previously owned that property, and therefore no one has a higher claim to it than you if you mix your labor with it."

  Stephan Kinsella said: "One homesteads an unowned resource by being the first to possess, use, emborder it, because these give the appropriator an objective link to the property, a better connection to it than any latecomer." [http://blog.mises.org/archives/007614.asp]

  Note the use of the comparatives in "a higher claim" and "a "better connection" to the entities homesteaded that implicitly acknowledges the shaky ground on which that original link to the ownership of the physical entities is held to rest. This is the Achilles Heel of the anti-IP claim that only stuff and never ideas can be property. Actually, it is exactly the reverse that is true.

  This inversion is the natural consequence of attempting to define political principles in a philosophical vacuum. Politics is a branch of philosophy - one that follows and is dependent on ethics. While the science of ethics defines the code of values proper for the life of a human individual, politics is the science that applies that code in the context of the individual's life in a socio-economic society of many individuals living and interacting together over the long-range in a particular geographical region.

  The impasse over the opposing positions clearly signals a difference at a more fundamental level that must be dealt with first before any resolution and agreement is possible. This explains the "us vs. them" syndrome that concerns Frank. The Objectivist position on property rights is firmly rooted in and inseparable from ethics, a consideration non-philosophical libertarian pragmatists evade and avoid. Consequently, while arguments between them can be informing, they are otherwise now and forever futile. No political principle can be validated without the support of a valid ethics.

  The pertinent ethical principle rests on two facts: 1. that the quality and quantity of a human being's life is contingent on the application of his ideas and actions to existence. 2) that being volitional, all men are fallible. Consequently, the primary ethical prerequisite in the service of one's highest value - one's life - is intellectual and physical autonomy. It is the political concept of property that recognizes in a socio-economic context the application of that autonomy to the entities of existence.

  The right to property is not a right to the entities themselves. There is no ethical principle deriving from the nature of man that can establish a moral claim to control an entity in the absence of any application of ideas and actions to it. A property right is the right to control the use of unowned entities because they are the repository of the product of an autonomous application of ideas and actions to existence to which there is a valid moral claim.

  
  

  Published: November 22, 2008 2:42 PM

• Michael Smith

  But this implies that property owners have a right not only in the physical integrity of their property but in the value of their property; they do not: value lies in the way others esteem your property.

  The fact that values are determined objectively, i.e. by negotiation between owner/seller and buyer, does not mean that the right to that value, whatever it may turn out to be, belongs to someone other than the owner.

  Thus, the value of my work is determined by what people are willing to pay me for it -- I cannot unilaterally dictate what that value will be -- but whatever that value IS -- whatever the market sets it at, it is mine by right, no one else's.

  Published: November 22, 2008 2:57 PM

• Jayel Aheram

  Some libertarians get confused when you say "intellectual property."

  That is the problem when you argue against IP rights. It is not a right; it is government-mandated monopoly. It is an immoral government intervention into the free market of ideas.

  And they do not seem to understand that copyrights infringed on real private property rights.

  Published: November 22, 2008 3:34 PM

• David Bratton

  There are several ways he can do this, but in each and every case -- in a free society -- the baker (or someone) has to engage in a process of creation, in some form or another, to acquire that property right.
  
  Property rights can be acquired simply through exchange.
  
  Perhaps the value the baker will offer is his labor performing work for someone else -- in which case, whatever the baker‘s labor is employed to create constitutes a value that did not exist prior to the baker‘s effort
  
  What if he's just exchanging his time and labor for an hourly wage? Hourly workers have to be paid whether they are employed productively or not.

  Published: November 22, 2008 11:27 PM

• Michael Smith

  That is the problem when you argue against IP rights. It is not a right; it is government-mandated monopoly. It is an immoral government intervention into the free market of ideas.

  Ownership of property is defined as the exclusive right to the use and disposal of that property. That “exclusive right” does indeed require a “government-mandated monopoly” on the use and disposal of your property -- if someone steals your car, the government will enforce that “mandated monopoly” on the use and disposal of your car by arresting the thief and returning your car to you (if they can find it).

  Would the government’s actions in this case constitute an “immoral intervention into the free market for automobiles”? No. A free market means a market in which the owners af all values, material as well as intellectual, have the sole power to decide what to do with those values -- sole power to decide whether or not to trade them and if so, on what terms and on what conditions. Thus, implicit in a free market is a government with the power to enforce everyone’s right to the exclusive use and disposal of their property.

  The libertarian opposition to intellectual property is best summed up by a line from Atlas Shrugged: Why should Rearden be the only one allowed to manufacture Rearden Metal? The libertarian answer is that Rearden should have no such right -- that the fact that he spent 10 years and a fortune creating a fantastically valuable new metal is irrelevant to the issue -- that any parasite who did NOTHING toward the development of the product has as much right to it as Rearden. Thus, if Rearden spends 5 minutes carving a toothpick, libertarians will grant that the toothpick is his property -- provided he owned the wood used in the carving -- but an intellectual achievement like Reardan Metal belongs to anyone who wishes to copy it.

  Anyone who maintains that position has no business claiming to be advocates of individual rights and freedom.

  Published: November 23, 2008 6:01 AM

• Michael Smith

  Property rights can be acquired simply through exchange.

  What if he's just exchanging his time and labor for an hourly wage? Hourly workers have to be paid whether they are employed productively or not.

  Yes, property rights can be acquired purely through exchange, without the receiver creating/producing anything. That’s why I gave this example in my first post:

  Or perhaps someone gives the baker the money as a gift or leaves it to them as an inheritance. Even in these cases, the giver or leaver, assuming he has valid title to the money, had to go through some similar process of creation/production to get the money.

  The answer above applies to your case as well. Yes, hourly workers can acquire title to money just by showing up. But as in the case of the giver or leaver, the man paying those hourly workers, if he has valid title to the money, had to go through some process of creation/production to get the money he now pays the hourly worker.
  

  Published: November 23, 2008 6:27 AM

• Anoymous

  @MichaelM

  "This is the Achilles Heel of the anti-IP claim that only stuff and never ideas can be property. Actually, it is exactly the reverse that is true."

  Only ideas and never stuff can be property? Wow, that's a new one...

  @Michael Smith

  One of Kinsella's main points is that physical property rights and intellectual property rights are necessarily in conflict. To the extent that you support intellectual property rights, you are NECESSARILY against physical property rights.

  MichaelM has at least been honest in admitting that he is 100% for property rights in ideas and 100% against property rights in physical objects. Do you feel the same way, or are you a centrist hoping for a compromise?

  Published: November 23, 2008 7:49 AM

• MichaelM

  @Anonymous
  "Only ideas and never stuff can be property? Wow, that's a new one..."

  New only to the Randian oeuvre's unread:

  from "Mans Rights", Rand, April 1963, reprinted in "The Virtue of Selfishness":
  "Bear in mind that the right to property is a right to action, like all the others; it is not the right to an object, but to the action and the consequences of producing or earning that object."

  from "Patents and Copyrights", Rand, May 1964, reprinted in "Capitalism: The Unknown Ideal":
  "An idea as such cannot be protected until it has been given a material form. An invention has to be embodied in a physical model before it can be patented; a story has to be written or printed. But what the patent or copyright protects is not the physical object as such, but the idea which it embodies."

  In the latter article, Rand also explains the necessity of time limits on the ownership of intellectual property by distinguishing between the transfer of material objects embodying applied ideas from the ideas that can be further applied in the future. Material wealth requires continuing efforts of heirs to it in order to sustain its value (good management, investment, etc.) thus earning in their own right that property. The value of intellectual property does not, so to protect it into perpetuity would be to guarantee a benefit of unearned wealth.

  Rand preferred a cutoff at 50 years after the death of the creator. That would protect the value to the creator by guaranteeing to any prospective purchaser of his rights that the value would not evaporate if the creator died shortly after the sale was completed.

  Here too, time limits are a recognition of the fact that ownership devolves not from the stuff of existent objects, but from the human actions they embody in the absence of which no value would exist.

  Published: November 23, 2008 10:41 AM

• MichaelM

  @Anonymous

  Michael Smith's statements are not in conflict with mine. I am not against property rights in physical objects. I am only against ascribing the source of one's ownership of physical objects to some asserted value in the raw materials of which they are composed.

  Your attempt to pit intellectual property against material property implied in your suggestion of a possible compromise commits the fallacy of the mind-body dichotomy. The mind and body are not separate entities; the mind is an aspect of our body. And the value of our body, both to us and to others, is the direct result of the actions of our mind. Abstractly, we can consider and define the two separately, and we can ascribe the source of the value to one of the two, but the actual value itself exists only in the concrete integration of the two.

  Similarly, the ultimate value of property to one's life does not lie in the components separately, but rather in the unit that is the embodiment of one in the other, with one being the giver of value to the other.

  Published: November 23, 2008 11:32 AM

• Anonymous

  @MichaelM

  "I am only against ascribing the source of one's ownership of physical objects to some asserted value in the raw materials of which they are composed."

  Somehow, I'm getting the sense that you may be new to this site. If so, feel free to explore, as I'm sure you will find much you can agree with here.

  As to the above quote, the natural rights libertarian view of property is that ORIGINAL APPROPRIATION of previously unowned natural resources is necessary and sufficient to establish a property right in those resources.

  This is also known as homesteading. It has nothing AT ALL to do with the value of the resources and everything to do with original appropriation.

  Published: November 23, 2008 1:17 PM

• MichaelM

  @Anonymous

  "This is also known as homesteading. It has nothing AT ALL to do with the value of the resources and everything to do with original appropriation."

  My point exactly, as long as it is understood that the original appropriation may not be effortless. Homesteading has nothing to do with the value of resources, because resources per se have no value ever. But a homesteaded resource does have value that was created and integrated into it by the human efforts that constituted the original appropriation. Homesteading converts worthless material entities into values in the service of life by embodying in them the consequences of human efforts. The physical materials will continue to be thereafter just a repository of the accumulation of those and future efforts added - that which is worth owning and defending as property.

  Published: November 23, 2008 5:43 PM

• Jesse

  Michael Smith: "Ownership of property is defined as the exclusive right to the use and disposal of that property."

  This is not a point on which all of us agree, if you are counting as "use" any purely passive benefit derived from the property in question, as would be necessary to support the pro-"IP" argument.

  The standard libertarian position is that property rights are negative rights, meaning that no one can interfere with the owner's right to employ and dispose of the property in any way which does not infringe on the similar rights of others in their own property.

  Naturally, this makes it pointless to claim property rights in ideas, information, patterns, and the like, as there is no way to interfere with anyone's use of such intangibles without simultaneously violating their tangible property rights.

  Published: November 23, 2008 10:12 PM

• Anonymous

  @MichaelM

  "Homesteading converts worthless material entities into values in the service of life by embodying in them the consequences of human efforts."

  I disagree with you on this point, but let's remember that - even if you are right - it has no bearing on IP.

  @Jesse

  "there is no way to interfere with anyone's use of ... intangibles without simultaneously violating their tangible property rights."

  I tried to point this out to MichaelM earlier, but he accused me of committing "the fallacy of the mind-body dichotomy." lol

  Published: November 23, 2008 10:48 PM

• Jesse

  @Anonymous: My point was that under the system of negative rights favored by libertarians the closest you can get to the pro-"IP" position is that one has the (non-exclusive) right to utilize one's own ideas. A rather useless right, since everyone has it implicitly, but I wouldn't object if someone made such a claim. However, for a property right to be exclusive others' use of the property must necessarily interfere with the owner's use, and that simply isn't possible in this context. I don't see anything in MichaelM's comments which addresses this.

  Published: November 23, 2008 11:13 PM

• MichaelM

  @Jesse

  You too are attempting to define these political rights in a philosophical vacuum. Yes, rights are negative mandates precluding interference of others. But how do you justify defining them as such? What more fundamental facts of reality demand such a conclusion?

  Since politics is the extension of ethics in the context of an individual to the context of a society of individuals, you can only find those facts at the base of ethical principles. Ultimately, all political rights are moral rights. Quoting my first post of Nov 22:

  "The pertinent ethical principle rests on two facts: 1. that the quality and quantity of a human being's life is contingent on the application of his ideas and actions to existence. 2) that being volitional, all men are fallible. Consequently, the primary ethical prerequisite in the service of one's highest value - one's life - is intellectual and physical autonomy. It is the political concept of property that recognizes in a socio-economic context the application of that autonomy to the entities of existence."

  To satisfy this moral prerequisite, every human being must have exclusive control over the application of the products of his own mind and body to the entities of existence. That is the only morally justifiable definition of "use" in the context of property rights.

  The definition of "use" the opponents of IP rely on is concrete bound in their pragmatism and, in some cases, their ulterior motives. The I-hope-unintended result is ironically identical to the socialist's ultimate view of property in denial of the source of value: the goods are there, throw a bone to the creator and distribute the meat to the masses.

  Published: November 24, 2008 10:04 AM

• James

  The Libertarian position on IP is still unclear to me in regards to say music, books, or paintings.

  1. Does an independent musician have exclusive rights to the notes and lyrics he had created?
  2. If yes, how can his rights be protected in a Libertarian society, in cases where other people attribute their name to the artist's work, or create derivative works, and pass them off as their own?

  Published: November 24, 2008 12:23 PM

• Rob Biddle

  “The libertarian opposition to intellectual property is best summed up by a line from Atlas Shrugged: Why should Rearden be the only one allowed to manufacture Rearden Metal? The libertarian answer is that Rearden should have no such right -- that the fact that he spent 10 years and a fortune creating a fantastically valuable new metal is irrelevant to the issue -- that any parasite who did NOTHING toward the development of the product has as much right to it as Rearden. Thus, if Rearden spends 5 minutes carving a toothpick, libertarians will grant that the toothpick is his property -- provided he owned the wood used in the carving -- but an intellectual achievement like Reardan Metal belongs to anyone who wishes to copy it.”

  Michael,

  I’m a big fan of Atlas Shrugged and have thought about this scenario quite a bit. I was furious when reading the part where Hank gives in to the blackmail scheme.

  That being said, I wasn’t mad because others were now going to be able to produce Rearden Metal (Miracle Metal), I was upset because Hank was willing to give up his accomplishment for such a silly reason as the embarrassment of Dagny that he merely imagined. I wasn’t mad because Hank’s property rights had been infringed. Even if he had property rights in the way you are alluding to he did after all hand them over.

  Hank Rearden has de facto rights only in the sense that no one can force him to give up the information in his brain. The fact that he spent 10 years figuring out how to make Rearden Metal doesn’t have anything to do with the value of the Metal to anyone else (that would mean supporting the Labor Theory of Value). If someone else had spent 10 years (or 50 years, or 10 minutes) and came up with the same recipe and process independently should they be prevented from putting that knowledge to use?

  Hank was free to withhold his knowledge of the recipe and process for making Rearden Metal. He was never free to forcibly prevent others from making similar metal products whether using his own power or the power of the State.

  If someone after studying Rearden Metal figures out its chemical structure and is able to reproduce it why should they be prevented from doing so? If you believe they should then you are guilty of holding contradicting positions. On one hand you claim that Hank has a right to the things he produces, but then you say that others do not have that right.

  BTW, your toothpick analogy is a good one. The same concept applies. Property rights only apply to THAT toothpick. There is no right to prevent others from carving toothpicks with their own wood. You may wish to “Blank Out” (Sorry, couldn't resist) the image and concept of the toothpick from people’s minds, but your wish is not reasonable.
  

  Published: November 24, 2008 12:55 PM

• Jesse

  MichaelM: "The pertinent ethical principle rests on two facts: 1) that the quality and quantity of a human being's life is contingent on the application of his ideas and actions to existence. 2) that being volitional, all men are fallible."

  I'll accept these two points for the sake of argument.

  MichaelM: "Consequently, the primary ethical prerequisite in the service of one's highest value - one's life - is intellectual and physical autonomy."

  A bit of a non-sequitor, but I think we agree, if by "autonomy" you are referring to the concept of self-determination: that no one has the right to interfere with one's employment of one's mind, body, and property, subject only to the same rights of others.

  MichaelM: "To satisfy this moral prerequisite, every human being must have exclusive control over the application of the products of his own mind and body to the entities of existence. That is the only morally justifiable definition of 'use' in the context of property rights."

  This is a major non-sequitor. Why should this control be exclusive? Merely retaining the right to apply these products, non-exclusively, would be sufficient to fulfill the parameters established above. Your argument supports only those points on which we already agree; the conclusion you wish to draw, that employment of property must be exclusive, even in the absence of any natural conflict, remains unfounded.

  @James

  1) No. 2) In a commercial context that would be fraud, although it would be up to the defrauded buyers to seek compensation. The easiest way to deal with the misattribution itself would be to simply publicize proof that you were the creator of the work in question.

  Published: November 24, 2008 1:33 PM

• MichaelM

  @ Rob Biddle

  "If someone after studying Rearden Metal figures out its chemical structure and is able to reproduce it why should they be prevented from doing so."

  Because that effort is not the effort in the absence of which the value would not exist. Rearden's effort was.

  -----------------------

  "If someone else had spent 10 years (or 50 years, or 10 minutes) and came up with the same recipe and process independently should they be prevented from putting that knowledge to use?"

  No, they can share the value of excluding all others who did not independently come up with the same recipe and process.

  Published: November 24, 2008 2:18 PM

• Michael Smith

  MichaelM is correct. With respect to intellectual property, libertarian’s efforts to derive political principles without reference to a proper ethics leads them to advocate a blatant injustice.

  Libertarians (some of them, at least) claim that anyone may copy an invention -- that the copier has the same right to produce the invention as the creator. In their view, all that the creator has produced is an “intangible” design -- so all he can claim ownership of is that “intangible“ mental content plus whatever specific units of the invention he has produced. Since the copier doesn’t interfere with what the creator can do with this “intangible” or the units he has made, they conclude the copier is not interfering with his property rights.

  But this evades the fact that every example of the invention that is subsequently produced -- by anyone -- is an embodiment of the creator’s design, has whatever value it has only as a result of the creator’s design and constitutes a use of the creator’s design.

  Justice demands the granting of the earned and the withholding of the unearned. Granting the copier the right to produce the invention achieves the opposite. It reduces the benefits accruing to the man who made the invention possible and thus earned those benefits -- and instead diverts them to those who contributed nothing to the creation and have thus earned nothing.

  But libertarians -- in my experience, anyway -- are completely untroubled by this. Justice is a concept from the field of morality. And eschewing a rational morality, libertarians take the non-initiation of force principle, drop context, and use it as the standard of morality Thus, they hold that anything which involves the initiation of force is evil, anything that does not involve the initiation of force is good.

  Since the copier does not appear to be initiating force against the creator, they see nothing wrong with the situation. However, if they studied the context in which the non-initiation of force principle is derived -- the Objectivist ethics -- they would see that initiating force is evil because it prevents a man from acting on his own judgment, thus negating a crucial survival requirement for a rational being. What’s more, they would learn that this negation can be done with subtle, indirect forms of force as well as something as overt as a gun to the head. Perhaps then they’d see what’s wrong with allowing the copier to benefit at the expense of the creator.

  Published: November 24, 2008 2:21 PM

• MichaelM

  @Jesse

  "Why should this control be exclusive?"
  
  It should be as exclusive as one's contribution is to the existence of the value.

  Published: November 24, 2008 2:38 PM

• Michael Smith

  Rob:

  When I composed my last post, I didn't realize you had already posted your comment, wherein you advocate giving the copier the same right to produce the invention as the creator.

  So, I didn't mean to sound condescending by appearing to address you indirectly.

  At any rate, I hope I've made clear my reasons for advocating exclusive ownership of an invention by its creator. I'll await your response, if any.

  Published: November 24, 2008 2:50 PM

• Stephan Kinsella

  Michael Smith: "But this evades the fact that every example of the invention that is subsequently produced -- by anyone -- is an embodiment of the creator’s design, has whatever value it has only as a result of the creator’s design and constitutes a use of the creator’s design."

  Actually, nothing "has" value. Value is not some objective substance. Things are valued by valuers--when in an action people demonstrate a preference for it. (This is similar to Rand's views--see below.) So it is not "only" as a result of the creator's designs that an invention "has value"--if the cause of its having value is a source of ownership, then all the products a person sells are owned by the public at large! Or, if you are instead referring to a market price, this arises as a result of the appraisals of thousands of people on the market--so that would mean that the market owns your products.

  Clearly, there is something flawed in your view that you own something if it has value "because" you came up with the design.

  As I noted in Mises and Rand (and Rothbard): "I have long thought this is in part because Rand and/or some Objectivists misundestand Mises. His subjectivism is not subjectivism in her sense--the idea that everything is relative and non-knowable. Rather he just means that a value is a value of a person, and that they are ordinal, not cardinal, not interpersonally comparable, and only demonstrated through action. This is actually similar to Rand's concept of value--something that mans ACTS to gain and/or keep--rand even said somehwere she added "acts" because if you say you value achieving something your whole life and never do anything about it, in what sense can you be said to value it? This is the same insight underlying Mises' "subjectivism" and value theory. Even Randians' confusing belief that values are "objective" does not really seem to deny the idea that in fact, individuals are the ones who *do the valuing*."

  Published: November 24, 2008 2:55 PM

• Rob Biddle

  @ MichaelM

  "Because that effort is not the effort in the absence of which the value would not exist. Rearden's effort was."

  By that reasoning Henry Ford would have been paying royalties to the families of chariot makers and wheeled-cart patent holders.

  I guess Ralph Lauren and Tommy Hilfiger better watch out for anyone who claims to have created the original clothing designs (shirts, pants, shoes etc) from which the modern designs could not have existed if they were absent. (Maybe we would be wearing Hilfiger hides and loin-cloths)

  Although I guess since those inventions aren't "protected" by the current State power the concept doesn't have to extrapolate??? Seems like a contradiction to me.

  "No, they can share the value of excluding all others who did not independently come up with the same recipe and process."

  Ahhh, so there it is. The "value" is "the value of excluding".

  I thought a value was something objective, not something derived by excluding others from action.

  Published: November 24, 2008 3:05 PM

• Rob Biddle

  Note: When I said " a value was something objective" I mean from the perspective of an individual and their values. Obviously values are subjective when comparing the values of different individuals.

  Published: November 24, 2008 3:22 PM

• MichaelM

  @Rob Biddle

  By that reasoning Henry Ford would have been paying royalties to the families of chariot makers and wheeled-cart patent holders.
  and
  Ahhh, so there it is. The "value" is "the value of excluding".

  In both cases you have conveniently dropped the context well established in previous replies.

  Re Ford: No., IP is time limited and patents are only given to added value i.e., for Ford's effort in the absence of which the value would not be added.

  Re "excluding": Given all I have said, it should be obvious that I mean the difference in the value between exclusive and non-exclusive rights.

  Published: November 24, 2008 4:20 PM

• MichaelM

  @Stephan Kinsella

  There is nothing in Objectivism that fails to recognize that economic values are subjectively chosen (relative to the choices of others). Nor is there anything in the Objectivist politics that fails to advocate protection of an absolute right to exercise such subjectivism.

  The objectivity or subjectivity of those values in relation to the nature of reality and the consequences of making those subjective choices is an entirely different subject. The word "subjective" has, in the two different contexts, two entirely different meanings that are not interchangeable, as you seem to grasp clearly here :

  "His subjectivism is not subjectivism in her sense--the idea that everything is relative and non-knowable."

  and not so clearly here:

  "Even Randians' confusing belief that values are "objective" does not really seem to deny the idea that in fact, individuals are the ones who *do the valuing*."

  [On the side: Objectivism does not say values are objective. It says they should be objectively defined to be consistent with one's own nature and the nature of reality. Nothing confusing about that. In other words, Objectivism holds that to value a political guarantee of the right to subjectively choose your values is objective, as is the warning that if you subjectively choose values that are not objectively formulated, reality will punish you accordingly.]

  In a free society, the only two subjective evaluations that may establish the terms of an exchange of values are those of the parties to the exchange. (Objectivism does not condone any idea of intrinsic value). When Michael and I refer to the value that an embodiment of an idea "has", we mean the position it has in the (subjectively defined) hierarchy of values of each party relative to all other options. When someone creates an application that previously did not exist only he has a moral claim to benefit from whatever potential position that application can generate in the value hierarchies of others because that position is a direct result of his and only his actions.

  By what moral standard does anyone else claim the right to decide that "some" of its potential benefit is sufficient and the rest must be transferred to the public domain?

  Published: November 24, 2008 6:53 PM

• Michael Smith

  Stephen:

  MichaelM has explained it brilliantly:

  When someone creates an application that previously did not exist only he has a moral claim to benefit from whatever potential position that application can generate in the value hierarchies of others because that position is a direct result of his and only his actions.

  If you will examine my comment from 11/22 at 2:38 pm, you will see that I am not claiming that ownership rests with those who are "causing it to have value", but with those who create the thing being valued.

  MichaelM's explanation of the meaning of the Objectivist position on values is the best I've ever seen. Simply brilliant -- and I'm sure I'll be quoting it many times in the future.

  Published: November 24, 2008 7:31 PM

• RWW

  It seems to me that every argument in favor of intellectual "property" given so far relies on appeals to emotion -- though that emotion is usually code-named "morality" or "ethics."

  Published: November 24, 2008 8:18 PM

• andras

  I think it is time to add my two cents. I was the one who asked Stephan how he applies his views to homesteading. Though I should have asked him to compare not to any baker's bread but the first baker's one. That would have been more fitting. I have thrown a hornets nest into the debate anyway. I did it on purpose to challenge his sacred position on homesteading of the libertarians while his ignoring of "homesteading" of IP. Stephan has never answered, however, I got a great explanation from MichaelM. I will cherish it. Thank you MichaelM.
  Michael Smith had a beautiful example with Rearden and his metal. The apparent dichotomy is between stealing an invention and exclusivity. However, if the second (and further) inventor(s) can prove that they could figure out the same solution without any input from the first inventor this dichotomy could be erased. Of course, real breakthroughs are hard to be ignored especially for the competition. Disproving its knowledge is even harder, but let them try. And if they are successful let them share the rights.

  Published: November 24, 2008 10:19 PM

• RWW

  The burden of proof is on the accuser. Not that there's any legitimate crime to be accused of here.

  Published: November 24, 2008 10:25 PM

• Peter

  MichaelM is correct. With respect to intellectual property, libertarian’s efforts to derive political principles without reference to a proper ethics leads them to advocate a blatant injustice.

  On the contrary; Jesse is correct. You're the one attacking the problem "without reference to a proper ethics", hence coming to incorrect conclusions.

  Justice demands the granting of the earned and the withholding of the unearned.

  Nonsense. If Bill Gates wants to give $5 billion to some homeless guy, who didn't earn it, that's entirely between Bill and the lucky recipient - Justice demands that you keep your nose out of it; Justice does not demand "the withholding of the unearned".

  Published: November 25, 2008 1:05 AM

• David C

  About IP, I think part of the misunderstanding is that a property right is *not* a right to coerce others over the use of a resource. People never have an inherent right to coerce other people, rather property is a right *not to be coerced* regarding a particular resource. Now sometimes because of the physical nature of property, it becomes physically impossible for my property to be respected or secured without coercion, same with protection of rights. But with things that can be copied and imitated, that is not the case.

  In fact, most IP restrictions are actually a violation of my property. After all, it's my stove, my bread, or my brain that knows something, yet I might be restricted on the stove I use or the bread I make because it is similar to what someone else does or has. In fact, even if I busted in and stole the bread recipe at gun point, or broke a contract and gave it to everybody in town. That may be just grounds to punish me for violation of your property, but not just grounds to restrict what others do with their property. Giving those restrictions the label of "intellectual property" does nothing to change the nature of who's property rights are being violated any more than calling a slave on the plantation "property", changes the fact that is the slaves property rights over himself that are being violated, not the plantation masters.

  IMHO, the real issue is not about what is property, but when are going to give up on the obsolete royalty and book-sale model for securing liberties.
  

  Published: November 25, 2008 1:29 AM

• MichaelM

  @Peter
  On the contrary yourself. Our arguments are based in the Objectivist ethics. You need to demonstrate either that it is not a proper human ethics or that it does not support the defense of IP. You might also want to include a mention of the proper ethics on which anti-IP is based. Until that time, you have merely characterized it as "without reference to a proper ethics," but you have failed to show that the characterization actually applies.

  Published: November 25, 2008 9:25 AM

• Michael Smith

  Peter:

  Justice demands the granting of the earned and the withholding of the unearned.

  Nonsense. If Bill Gates wants to give $5 billion to some homeless guy, who didn't earn it, that's entirely between Bill and the lucky recipient - Justice demands that you keep your nose out of it; Justice does not demand "the withholding of the unearned".

  You have taken my statement completely out of context and applied it to a different situation than the one I was talking about. Whereas I was using the moral concept of justice, you are talking here about legal concept of justice. Nevertheless, it can still be shown to apply to this situation.

  Legally, the concept of justice is the recognition and protection of individual rights -- it is the protection of the rights of the innocent by punishing those guilty of violating rights. So yes, Gates has the right to give his money to the homeless man -- the law has nothing to say about that act since no one’s rights are being violated.

  But observe that even in the purely legal sense, justice still demands the granting of the earned -- namely, that we grant Gates what he has earned: the right to the use and disposal of his money. And it still demands the withholding of the unearned -- namely, that we do not grant to the homeless man any right to Gate’s money before Gate’s gives it to him.

  Now, what is the moral concept of justice?

  In the Objectivist ethics, justice is the virtue of evaluating the character of other men by an objective moral standard, considering all the relevant evidence, and then treating them accordingly. Objectivism holds that the proper moral standard is: man’s life -- the life of a rational being; all that which is proper to the life of a rational being is the good; that which negates, opposes or destroys it is the evil.
  
  Thus, if you observe a man that sleeps on the street, makes no effort to find or perform productive work and survives by mooching or scrounging in dumpsters, he is, according to Objectivism’s moral standard, a parasite, a passively evil being that is slowly destroying his life. And having judged him this way, justice demands that you treat him accordingly, by avoiding contact with him and refusing any request he may make for your money or property. Giving him any material values represents only a loss to you while enabling his continued practice of the vice of parasitism. This is the sense -- the moral sense -- in which justice demands the withholding of the unearned.

  So in this instance, practicing the Objectivist ethics protects you and your values and does not enable the evil behavior of another.

  Now, if you completely dispense with morality, as so many libertarians do, and are guided solely by the non-initiation of force principle, how do you evaluate this man? Since he’s not initiating the use of force against anyone, he is good by your standard and there is no reason for you not to deal with him. He is, by your standard, the equal of everyone else who is not initiating the use of force -- so why shouldn’t you deal with him? He’s every bit as worthy of help as any other non-initiator, so why wouldn’t you share some of your money with him?

  In this instance, if you are guided simply by the non-initiation of force principle, nothing prevents you from doing harm to yourself and your values while helping the parasite practice his vice.

  Of course, in reality I doubt that many libertarians truly do dispense with morality. They make moral judgments according to what they’d call “common sense”; they just don’t want to refer to such judgments as “morality” -- I suspect because there are other moral judgments they wish to avoid.

  Peter also said:

  On the contrary; Jesse is correct. You're the one attacking the problem "without reference to a proper ethics", hence coming to incorrect conclusions.

  Given what I've written above, what are the proper ethics I've overlooked and which of my conclusions are wrong?
  

  Published: November 25, 2008 9:44 AM

• Anonymous

  This discussion has been interesting for me, because I think I've gained a deeper understanding into what objectivism is all about.

  From what I can gather, objectivists exist in a universe of ideas. For them, the physical world is merely the medium through which ideas are expressed. As such, objectivists are concerned primarily with the control of ideas (i.e. IP) rather than the control of matter. Because ideas can not be controlled directly, a system of physical property rights must arise from and be subservient to the requirements of intellectual property and its owners.

  If the above is an accurate description of the objectivist position, then the gulf between Kinsellian and Randian property theory is most likely unbridgeable.

  Published: November 25, 2008 9:51 AM

• Anonymous

  To clarify the above: the two positions are unbridgeable because Kinsella sees IP as an extension of (or addition to) traditional property rights, whereas objectivists see intellectual property as the original and only true property.

  Published: November 25, 2008 10:22 AM

• MichaelM

  @David C

  Michael Smith said (Nov 24 2:21):
  "And eschewing a rational morality, libertarians take the non-initiation of force principle, drop context, and use it as the standard of morality"

  Today, you have shown it to be true:

  "Now sometimes because of the physical nature of property, it becomes physically impossible for my property to be respected or secured without coercion, same with protection of rights. But with things that can be copied and imitated, that is not the case."

  The ethical principles on which political principles are based do not deal with land or lyrics. They are abstract principles that must apply to all instances of property. As such, they deal only in values. When I explain to someone what the single guiding principle of Rand's radical laissez-faire capitalism is I say:

  No man may initiate the use of physical force to take, withhold, or destroy any value created by or acquired in a voluntary exchange by any other man.

  By not discriminating among values, as you do when you drop the context within which political non-initiation of force depends on ethics, this statement of the principle automatically includes a sanction against indirect physical force for gain: e.g. fraud that withholds a value, or libel that destroys a value, each requiring the use of force to restore the value lost.

  Your concrete-bound prerequisite to be able to see the physical force occur compromises your defense of liberty, and in the case of IP, leads you to cede rightfully owned values to the socialists by default.

  
  

  Published: November 25, 2008 10:38 AM

• Rob Biddle

  @MichaelM

  “In both cases you have conveniently dropped the context well established in previous replies.
  Re Ford: No., IP is time limited and patents are only given to added value i.e., for Ford's effort in the absence of which the value would not be added.”

  Dropped the context? I don’t think so. I guess you could mistakenly see a context drop if you accept the completely arbitrary time limit granted to IP as part of the context.
  For sake of argument I’ll try to restate it using an example that would fall into your arbitrary context. Instead of chariots let’s use the 1885-built Benz Patent Motorwagen. Karl Benz die in 1929 so it fits. Should Karl Benz been granted the privilege of preventing Henry Ford from building his Model-T? Certainly Ford didn’t invent the automobile and might not have built the Model-T in absence of previous automobiles like the Patent Motorwagen.

  “In a free society, the only two subjective evaluations that may establish the terms of an exchange of values are those of the parties to the exchange. (Objectivism does not condone any idea of intrinsic value). “

  Ok. Given that, imagine this.

  Hank Rearden sells his Rearden Metal to Billy Bob the Bicycle maker. Billy Bob then builds a bicycle using the Rearden Metal. Jimbo buys the bicycle from Billy Bob. Jimbo wrecks the bicycle and sells it for scrap at Mickey’s Scrap yard.

  Mickey had nothing to do with the original terms concerning the exchange of values between Hank & Billy Bob. Mickey owes nothing to Hank.

  Mickey reverse engineers the metal and decides that he wants to make some of it himself using the steel, copper etc that he has in his scrapyard. There is no objective reason why Mickey should be prevented from doing so.

  “By what moral standard does anyone else claim the right to decide that "some" of its potential benefit is sufficient and the rest must be transferred to the public domain?”

  So you think that it would be good for someone to develop a new product or method and then decide that they don’t really want to do any real work (Just file for a patent and wait for someone else to infringe), but then turn around and lay claim to the produce of someone else (who is being productive) simply because they are producing that patented product or a product using a patented method?

  Sounds like quite the moocher mentality if you ask me.

  Also, I don’t think most anti-IP proponents are claiming that it “MUST” be transferred to the public domain. Rather, once a new product is created or a new method of production is invented it exists and is revealed by its creator to other individuals through direct exchange (which is inevitable if one is selling products) and also through proxy to any other individuals who happen to become aware of the existence of the invention and are able to identify and integrate the attributes of the invention. Then, it’s not a matter of someone other than the inventor deciding that it should be transferred to the public domain; it is already there by choice and by the actions of the inventor.

  Here is an example of the concept I’m trying to convey.

  If I invent a wonderful new recipe for an apple pie I could certainly keep it a secret if I didn’t want it to be transferred to the public domain. But if I want to sell a billion pies I would necessarily be releasing them into the public domain. If someone figures out the recipe by feeding the pie into a gas chromatograph or by simple trial and error, there isn’t any way for me to prevent that from happening.

  A is A. I can’t sell my newly invented pie and be guaranteed to keep it a secret too.

  - Rob

  Published: November 25, 2008 10:50 AM

• MichaelM

  @Anonymous

  "If the above is an accurate description of the objectivist position, then the gulf between Kinsellian and Randian property theory is most likely unbridgeable."

  It is not accurate, because, although there is some truth to it here and there, it ultimately commits the fallacy of the mind-body dichotomy. As I relayed above somewhere, Rand said that IP law cannot protect an idea until it is embodied - in a physical model at the very least.

  Ideas, materials, labor, and time are all components of things owned. Without the ideas the other components are worthless. But just because the idea is the ultimate source of value, does not mean that it can be that wholly independent from the others.

  In Objectivism, you may assume that the intellectual will always be treated as an aspect of the physical and separable only abstractly.

  Published: November 25, 2008 11:42 AM

• Per-Olof Samuelsson

  If intellectual property rights are a "government monopoly", then, so are material property rights.

  Suppose I own a car (undoubtedly a material object) and it gets stolen. I report the theft to the police; hopefully the police manage to apprehend the thief; I get my car back, and the thief gets dragged into court, where some kind of punishment is meted out.

  The police is a government institution, and so is the court. Thus, my property right (in this case, my ownership of the car) is a government monopoly.

  QED

  Published: November 25, 2008 11:43 AM

• Per-Olof Samuelsson

  Since it's so easy to get misunderstood, I should add that my last comment was meant as a "reductio ad absurdum".

  Published: November 25, 2008 12:00 PM

• Michael Smith

  Rob wrote:

  So you think that it would be good for someone to develop a new product or method and then decide that they don’t really want to do any real work (Just file for a patent and wait for someone else to infringe), but then turn around and lay claim to the produce of someone else (who is being productive) simply because they are producing that patented product or a product using a patented method?

  I know this comment was directed to MichaelM, but I must respond because this comment indicates a serious misunderstanding of patents:

  1) The notion that developing a patentable new product or method involves “no real work” is quite false. To qualify for a patent, a new product or method must meet the following criteria:

  a) The product or method must be unique and non-obvious. To determine whether your new product or method meets this requires an extensive review of all relevant prior art; you will spend many hours reading other patents and examining other products.

  b) The product or method must have real utility -- you will spend many dollars and much time on market research to verify that the new product or method is actually of value. (Even if patent law didn’t require this, it would certainly be risky to proceed without doing it.)

  c) You must “reduce the idea to practice“. In the case of a product patent, that means you have to actually make examples of the finished product. You have to provide detailed specifications on dimensions, materials, functions, etc. You must keep detailed records of each step you took in the development of the product or method, what prototypes were made, what samples were tested, etc.

  d) In the case of a method patent, you must supply full details of the method, all of its steps, the logic behind the sequence of the steps, etc.

  e) You must also disclose the best method of manufacturing the product or executing the method, i.e. you must disclose how you plan to manufacture the product or use the method economically enough to make it financially feasible. In other words, you have to identify the tools, processes and machines that will be used to produce the product or execute the method. The test is that anyone "reasonably skilled" in the art should be able to set-up and make the product successfully working solely from your patent.

  So, the notion that developing and patenting a new product or method all goes on in your head, that it can all be just dreamed up effortlessly is just plain false -- it can‘t be done that way -- not if what you want is a patent that is actually enforceable.

  Enforceability is the key. The Patent Office is not in a position to verify that you have properly done all this on the front end. For instance, if you tell them that your product can be made by the standard plastics process of injection molding, using polyethylene as a material, that you went through three iterations of making prototypes, market testing them, refining the design based on feedback, and that you have records for all of this, they’ll accept that what you are telling them is true. (Item “a” is the one they most scrutinize on the front end.)

  However, if you ever try to enforce your patent against an infringer, these things will be examined in great detail. After you file suit against the infringer, the court will set aside a period of months for discovery, during which time you can expect the other side to subpoena every record you’ve got on the product or method. And if you don’t have the records, if you cannot document that you actually followed the development process you say you did, or if it turns out that the product doesn’t actually function as well as claimed in the patent, or that different materials are used, etc, your patent can be deemed invalid. If a significant discrepancy is uncovered -- especially any indication that you were less than scrupulously honest with the Patent Examiner when the patent was first submitted -- the other side will make a motion for summary judgment and the court will dismiss your suit. So you better actually comply with all the requirements if you ever hope to actually enforce your patent.

  Yes, there are a lot of dumb patents that get issued -- but very few of those dumb ones ever results in an enforcement action. The patent office is overwhelmed and understaffed, and in many cases they simply punt and grant the patent, because they realize that 95% of those products never see production -- if the product is ever actually put into production and an enforcement action is brought, THEN they can examine the patent in detail.

  
  2) If, once your patent is granted, you simply sit on it and make no effort to put the patented product or method into production, the courts will likely rule you’ve abandoned the patent. There are no hard and fast rules on this (that I’m aware of), but if you are not at least making an effort to produce the item a year after the patent has issued, judges won’t hear your case -- not unless you’ve got a good explanation for the delay. They’ll throw out your suit. So you can’t get away with the scenario you’re imagining.

  3) What’s more, with regard to the idea that you can “lay claim to the produce of someone else”, that isn’t how it works (unless it has been changed recently). What you sue for is damages and to force the other party to pay you royalties on future production. And the burden is on YOU to prove that you’ve suffered damages from lost sales and lost profits attributable to the infringing party’s activities. Obviously, if you don’t even have the item in production, you won’t be able to prove any damages.

  4) Remember that you cannot patent a mere idea, as such. You can’t just say, “I think it would be a good idea to improve the mousetrap, so please give me a patent on an improved mousetrap“. When Rearden had the idea that he wanted to make a metal that would be to steel what steel had been to iron -- he had an idea, but not something he could patent. He had to actually develop it first.

  So to get a patent that is actually enforceable is -- generally -- a very substantial effort. Creating something new and useful, including figuring out how to produce and supply it, is not easy. I’m the holder of three patents, and none of them took less than 2 years of mostly full time work to complete.

  I wish all the opponents of IP would try putting 2, 3 or 4 years of their life into a new product design that they conceive, prototype, functionally test, redesign, re-prototype, evaluate against dozens (or hundreds) of other patented items that are similar, market test, figure out how to package, find distribution (often a very difficult thing to do!), figure out how to run in production, purchase machines, purchase tooling, set-up production lines and finally put the product on the market -- only to see, a few months later, that someone else is selling a copy of your product and -- guess what -- selling it at a lower price than you, since they don’t have to recoup the years of investment expense that you put into development! So overnight, your sales start to decline, and pretty soon most of the benefits of what you created are now flowing to the copier instead of to you.

  And no, I'm not claiming that mere effort establishes ownership -- I'm claiming that creation establishes ownership and that permitting the copier to benefit from something he didn’t create is an injustice.

  Anyway, sorry for the long post.

  
  

  Published: November 25, 2008 2:40 PM

• Rob Biddle

  @Michael Smith

  I realized shortly after posting that my use of the phrase "real work" was going to get attacked (and rightfully so).

  I should have phrased it like this:
  Someone could after the initial mental & physical work of developing the product/method decide that they don't want to continue with the physical work of putting their patented work to use, either through producing a product or making use of the method, seeking only to exclude others from doing so.

  I'll admit , I am not overly familiar with Patent law. That being said, whether or not a Court would see that scenario as abandoning the Patent is really beside the point. The underlying principal is still there.

  Going through the work of navigating a Government hoop jumping course doesn't create "Rights" where none exist.

  Imagine two neighbors. Neighbor A builds a well with a novel mechanism for retrieving water. Neighbor B upon observing decides to build his own.

  If there were no State, do you believe that it would be morally right for Neighbor A to tell Neighbor B that he has no right to build a well like that on his own property? Should he claim that he is owed some portion of the water in each bucket that is retrieved?

  Published: November 25, 2008 3:03 PM

• Jason

  "I wish all the opponents of IP would try putting 2, 3 or 4 years of their life into a new product design that they conceive, prototype, functionally test, redesign, re-prototype, evaluate against dozens (or hundreds) of other patented items that are similar, market test, figure out how to package, find distribution (often a very difficult thing to do!), figure out how to run in production, purchase machines, purchase tooling, set-up production lines and finally put the product on the market -- only to see, a few months later, that someone else is selling a copy of your product and -- guess what -- selling it at a lower price than you, since they don’t have to recoup the years of investment expense that you put into development! So overnight, your sales start to decline, and pretty soon most of the benefits of what you created are now flowing to the copier instead of to you."

  This seems to be nothing but the labor-theory of value, only it throws in mental labor along with physical labor.

  Any such idea or product copier would still have to market test, figure out how to package, find distribution, figure out how to run in production, purchase machines, purchase tooling, set-up production lines and finally put the product on the market. Once he does that, he will be way behind the person or company who was first to market with a product and has already mastered the production, supply-chain, distribution, and the marketing. So no, sales would not decline overnight.

  If we want to talk about morality, how is it moral to stop a person from applying his knowledge, however achieved, to his own physical resources to improve his own welfare, as long as he is not violating a contract or initiating physical force?

  Objectivists (myself one of them) like to use desert island examples. Let's assume a boat full of people were shipwrecked on a desert island with certain widgets on the boat which were patented in their home country. Assume these shipwrecked people discovered that they could reproduce those widgets with the available resources on the island and doing so would improve their conditions. Should they not do so because somewhere out there is a person who was first to market with the idea for those widgets?

  Published: November 25, 2008 8:10 PM

• MichaelM

  @Jason:

  "Let's assume a boat full of people were shipwrecked on a desert island ..."

  In the absence of a population of sufficient number to form a State, political rights do not exist. (OPAR p.351) The situation has no relevance whatsoever to the concept of property, intellectual or physical. It lies outside of the context within which IP has a reason to exist. The widgets are ipso facto in the public domain.

  IP rights are not entities like the hangtag on a pillow attached to each unit of an idea's application. They are terms of an agreement to grant them to others in a particular sphere of interaction for the sole purpose of sustaining them for oneself. Absent any possible direct or indirect interrelationship with an IP owner (creator/consignee), such an agreement and all its implied obligations would evaporate. It would be immoral for them to acknowledge an obligation for themselves from which they have nothing to gain.

  Published: November 26, 2008 1:26 AM

• Michael Smith

  Rob and Jason:

  Going through the work of navigating a Government hoop jumping course doesn't create "Rights" where none exist.

  This seems to be nothing but the labor-theory of value, only it throws in mental labor along with physical labor.
  
  It seems that neither of you read the next to last sentence of my post:

  "And no, I'm not claiming that mere effort establishes ownership -- I'm claiming that creation establishes ownership and that permitting the copier to benefit from something he didn’t create is an injustice."

  Jason asked:

  If we want to talk about morality, how is it moral to stop a person from applying his knowledge, however achieved, to his own physical resources to improve his own welfare, as long as he is not violating a contract or initiating physical force?

  The copier’s use of the creator’s design as embodied in the invention constitutes the unauthorized use of the creator‘s property, for purposes of obtaining a portion of the benefits that property makes possible. Only the creator has a moral claim to those benefits, since they are possible solely as a result of his original creation. Thus the copier is initiating an indirect use of physical force by keeping in his physical possession benefits that are rightfully the creator’s property.

  I’ve seen no better summary of the issue than what MichaelM wrote @ 11/24 6:53:

  When someone creates an application that previously did not exist only he has a moral claim to benefit from whatever potential position that application can generate in the value hierarchies of others because that position is a direct result of his and only his actions.

  By what moral standard does anyone else claim the right to decide that "some" of its potential benefit is sufficient and the rest must be transferred to the public domain?

  None of the opponents of IP have answered that point.

  Published: November 26, 2008 9:04 AM

• wuzacon

  Michael M and Michael Smith:

  When someone creates an application that previously did not exist only he has a moral claim to benefit from whatever potential position that application can generate in the value hierarchies of others because that position is a direct result of his and only his actions.

  Why then do IP rights have a limited duration? Are you suggesting that the only aggression here is the state's compulsory publication and granting of the idea into the public domain?

  Maybe, the proper application of IP would be to allow innovators to withhold their work (like a trade secret) and then if any other person happens to use the same idea, pounce on them with a claim of infinite monopoly privilege over the idea.

  Unlike others, I think this conversation is extremely useful as it helps us all to understand a little better how people obtain property rights without violating the rights of others. If we do not have these conversations and question the premises and conclusions of other libertarian thinkers, who will?
  

  Published: November 26, 2008 11:45 AM

• MichaelM

  @wuzacon

  From my Nov 23 10:41 reply:

  "In the latter article ["Patents and Copyrights", Rand, May 1964, reprinted in "Capitalism: The Unknown Ideal"], Rand also explains the necessity of time limits on the ownership of intellectual property by distinguishing between the transfer of material objects embodying applied ideas from the ideas that can be further applied in the future. Material wealth requires continuing efforts of heirs to it in order to sustain its value (good management, investment, etc.) thus earning in their own right that property. The value of intellectual property does not, so to protect it into perpetuity would be to guarantee a benefit of unearned wealth.

  Rand preferred a cutoff at 50 years after the death of the creator. That would protect the value to the creator by guaranteeing to any prospective purchaser of his rights that the value would not evaporate if the creator died shortly after the sale was completed."

  Published: November 26, 2008 12:55 PM

• Jesse

  It appears pointless to go back and forth over something as abstract as "intellectual property" when the Objectivists and libertarians can't even agree on the duration of ordinary, tangible property rights -- or more fundamentally, whether property rights are positive or negative, inherently exclusive or simply non-conflicting.

  A better question for the pro-"IP" group is this: what do you intend to do in support of your claims? Let's say you come up with a process, or a work of literature, or whatever, and someone comes along and starts imitating it without your permission. Assuming asking nicely doesn't work, do you use force? How much force? What makes your coercion defensive, rather than an aggressive escalation? Would a proportional response even be effective, given that the other party didn't make any "IP" claims to begin with?

  Published: November 26, 2008 1:22 PM

• Jason

  "When someone creates an application that previously did not exist only he has a moral claim to benefit from whatever potential position that application can generate in the value hierarchies of others because that position is a direct result of his and only his actions."

  Why does a person's mental actions give him a moral claim to all applications of his mental discoveries, and the right to prevent others from applying those same mental discoveries once they have mentally digested it themselves? I suppose your answer is "because man survives by reason." While it is true that man survives by reason, it is a non-sequitur to conclude therefore that reasoning creates property rights.

  Any person who uses his reason to discover ways to improve his condition definitely deserves a moral pat on the back; So does a person who uses his reason to understand how things work and to apply that knowledge to the use of his own physical property ,even if someone else has done it before. That people can benefit from the mental labors of others is simply a positive externality of living in society. If supporters of IP wish to "shrug", by all means do so. Plenty of other people can and will make the same discoveries. They will make lots of money by being the best at bringing their products and ideas to market, not by forcing others to refrain from applying their own knowledge to their own physical property.

  Published: November 26, 2008 8:50 PM

• Jason

  P.S.

  It's too bad Sam Barry didn't patent the Triangle Offense in basketball. It is weird how he accomplished such success without having IP protection on it. Phil Jackson would sure owe his decedents a LOT of money if only Barry had patented it.

  Published: November 26, 2008 8:56 PM

• MichaelM

  @Jesse

  Welcome to the Objectivist-Libertarian imapasse. Unfortunately, discussing your question will only compound the problem, because it moves the debate in the opposite direction from where it needs to go. To explain:

  By necessity of the very nature of the process of thought, we construct a body of knowledge in a format that resembles an inverted pyramid. At the bottom is the most fundamental thing we are capable of knowing - the primary axiom - the first truth in the chain of deriving all knowledge. Thereafter, in a progression from more fundamental (more abstract) below to less fundamental (more concrete) above, the knowledge on each succeeding level must be logically derived from the level below and remain consistent with all previous conclusions down to the first axiom.

  It follows, that anytime an impasse is reached at any level of the pyramid, the ultimate cause must lie in a contradiction on some more fundamental level below. At that point if the parties to the impasse still want to arrive at agreement, reality leaves them no choice but to go looking for their more fundamental disagreement, resolve it, and return in a logical sequence to agreement on the first issue of contention.

  Philosophy is the science that defines the structure of the pyramid. Each level is a different branch of philosophy logically dependent on the conclusions of the prior branches. In the context of the current discussion, the pertinent branches proceed like this [arranged from the bottom up as in the pyramid]:

  5. The applied philosophies and special sciences (economics, law, enforcement, business etc.) that answer the question, "what human actions are likely and what systems are appropriate given the set of conclusions drawn in 1-4?"
  4. politics, that answers the question, "so if that's what I myself and you yourself should do, what should we do?"
  3. ethics, that answers the question, "so if that's what I am and it is, and that's how I know it, what do I do?"
  2. epistemology, that answers the question, "and how the heck do I know that?"
  1. metaphysics, that answers the question, "what is everything anyhow?"

  You have mischaracterized the source of disagreement between Objectivists and Libertarians over IP. That disagreement lies deeper in the pyramid than the disagreement you point to; at the very highest it is in the connections between levels 3 (ethics) and 4 (politics). Recognizing our impasse in level 4, however, the solution you propose is to discuss the concrete methods and consequences of IP in level 5.

  That too will fail, because the disagreement in level 3 that remains unresolved will continue to infect all the successive conclusions based on the contradicting positions down there. The validity of knowledge at level 2 cannot be demonstrated without reference to and consistency with a valid 1. Then conclusions in 3 can be validated by reference to 2 and 1, and so on.

  The Objectivist's agreement with the economics of Mises (level 5) and all their radical capitalist principles (level 4) are derived in an unbroken chain of logic from their ethics, epistemology, and metaphysics in 3, 2, and 1. Any attempt to invert this process is intellectually self-crippling. Unfortunately, most Libertarians adamantly insist on validating their principles in 4 solely by reference to the stuff of level 5.

  That is the Libertarians' philosophical inversion. That is why we disagree.

  Published: November 27, 2008 12:17 AM

• Per-Olof Samuelsson

  Michael Smith:

  "The libertarian opposition to intellectual property is best summed up by a line from Atlas Shrugged: Why should Rearden be the only one allowed to manufacture Rearden Metal? The libertarian answer is that Rearden should have no such right -- that the fact that he spent 10 years and a fortune creating a fantastically valuable new metal is irrelevant to the issue -- that any parasite who did NOTHING toward the development of the product has as much right to it as Rearden. Thus, if Rearden spends 5 minutes carving a toothpick, libertarians will grant that the toothpick is his property -- provided he owned the wood used in the carving -- but an intellectual achievement like Rearden Metal belongs to anyone who wishes to copy it."

  Thanks for pointing this out.

  Published: November 27, 2008 11:53 AM

• Jason

  The above quote doesn't sum up the issue. The opposition to IP doesn't want to force Rearden to disclose his secret formula, nor is it true that a "parasite" would have to do nothing to figure out the formula for Rearden Metal to receive value from it.

  Someone who wanted to reverse engineer the formula for this metal, or discover it on their own, would have to have considerable intelligence, go through an immense amount of intellectual labor, figure out how to produce it, build relationships with suppliers, spend a fortune on equipment, labor, and logistics, and figure out how to use and market it.

  To the extent that Rearden did this labor first is irrelevant to the issue of rights; however, it is not irrelevant to the fact that Rearden would still have the right to produce this metal, he won't be forced to provide anyone his expertise, and he will make a fortune by being first to market and the best at bringing this metal to market.

  Published: November 27, 2008 12:35 PM

• Jason

  The first sentence in the third paragraph should read, "...is irrelevant to the issue of intellectual property rights."

  Published: November 27, 2008 12:38 PM

• Per-Olof Samuelsson

  A couple of quotes from Ayn Rand's own essay on "Patents and copyrights" may be in place here:

  "Today, patents are the special target of the collectivists' attacks - directly and indirectly, through such issues as the proposed abolition of trademarks, brand names, etc. While the so-called 'conservatives' look at those attacks indifferently or, at times, approvingly, the collectivists seem to realize that patents are the heart and core of property rights, and that once they are destroyed, the destruction of all other rights will follow automatically, as a brief postscript."

  Why would this destruction follow? Maybe one of the two Michaels in this thread has a better answer, but my own answer is that once a principle is abandoned, the rest is just a matter of time. (That the principle of property rights is abandoned was the point of my first post in this thread.)

  "The present state of our patent system is a nightmare. The inventors' rights are being infringed, eroded, chipped, gnawed, and violated in so many ways, under cover of so many non-objective statutes, that industrialists are beginning to rely on secrecy to protect valuable inventions that they are afraid to patent."

  This is the hub of the disagreement here. The patent system is in a mess. But what is the solution to this? To reform the system and strengthen patent rights? Or to abolish them altogether? This is the question to which there are two diametrically opposite answers.

  Published: November 27, 2008 12:53 PM

• MichaelM

  @Per-Olof Samuelsson:

  You are correct, the very principle of property rights is at stake. Note the implicit presumption in Jason's position that the collective masses may claim some of a creation's value by limiting the terms by which a creator uses and exchanges it.

  Property rights never means merely a right to "use" in the Libertarians' narrowed sense. It means the right to "own"; and that means the right to set the terms for its disposition - the absolute and exclusive right to arbitrarily discriminate in its use, exchange, distribution, disposal, and destruction.

  There is no basis to claim the right to set some use as a sufficient benefit from a value created. That is the justification squatters use to commandeer vacant buildings. Nor may anyone set secrecy as a condition to retain ownership. Also, when a copier of a creation exerts the intellectual and physical effort to understand it enough to copy it, the value of the copy is still due to the stolen idea and not to the efforts to understand it and copy it. Absent the act of the creator, the efforts exerted to copy it could not achieve an equivalent value.

  If any property (your autonomy over the product of your mind and body) may be qualified in this way, all property may be so qualified, restricted and redistributed. Anti-IP is a capitulation to the collectivists in advance, aka in Objectivist jargon as "the sanction of the victim."

  Published: November 27, 2008 4:09 PM

• Anonymous

  @MichaelM

  "the very principle of property rights is at stake"

  This debate clearly centers around the definition of a number of important terms, so I think it would be helpful if you could succinctly state the objectivist definitions of:

  1) property

  2) ownership

  3) aggression (i.e. the initiation of force)

  Thanks in advance!

  Published: November 29, 2008 12:30 AM

• Anonymous

  In order to avoid confusion, it may also be helpful to get the objectivist definition of:

  4) force

  Thanks!

  Published: November 29, 2008 12:35 AM

• MichaelM

  Caveat: Objectivism is the name of Ayn Rand's personal philosophy, she is the only Objectivist, and an Objectivist definition is one she gave during her lifetime. Those who agree with her are referred to as "Objectivists" for the obvious convenience of it, but strictly speaking, they are all just students or adherents or fans or in agreement with Objectivism, and no interpretation of or addition to it not authorized by her may be considered as part of the philosophy.

  The quickest access to explanations, including many definitions, of her ideas is here: http://www.aynrandlexicon.com/

  So, as an Objectivist in the student/adherent sense of the word, and just off the top of my head, here are my definitions of the words when used in the moral-political context:

  
  Property - the retained product of one's efforts

  Ownership - earned autonomy over the disposition of values

  Aggression - the use of force to gain from another without consent

  Force - a physical action or threat thereof

  
  With these four words one can define the sole purpose of forming a government as - the exercise of force to counter aggression against the ownership of property.

  Physical force is the only enemy of freedom and the only concern of a moral government. The alleged power of "economic force" and "undue influence" are strictly metaphorical and not rightly a concern of government.

  Published: November 29, 2008 11:50 AM

• Anonymous

  Thanks to MichaelM for the definitions and link. The above definitions are yet more evidence that libertarianism and objectivism are fundamentally different philosophies. That being said, I am happy that - as a result of this discussion - I have gained a deeper appreciation for, if not belief in, objectivism.

  After some contemplation, I have come to think that information (which is what IP consists of) may potentially be scarce and controllable, partially fulfilling Kinsella's criteria for property. But even if we concede that information is property, the authority of the owner of information must logically be limited to the copies he OWNS - in other words, the copies that are embodied in HIS property.

  Any party coming into possession of a copy without initiating force may exercise the prerogatives of an owner with respect to that copy (including the right to make further copies and distribute them). The only exception to this could be when a party comes into possession of a copy as part of a contractual agreement. Absent a contract, the possessor of a copy of information is just as much an owner of that copy as the creator is of the original.

  Published: November 30, 2008 10:23 AM

• MichaelM

  No. Property does not consist of raw information that is merely the vehicle by which knowledge is transferred. It consists of a particular application of knowledge that causes the existence of a value. The one who devises that unique arrangement has sole right to set the terms of its use.

  If he sells or leases that use to a manufacturer, that manufacturer has sole right to set the terms for use of the units to which the creation is applied subject to the terms of his agreement with the creator vis a vis the idea. They are the only ones with any rights to the applied idea.

  Your attempt to derive rights for yourself, contrary to the wishes of the manufacturer/creator, from just encountering an exemplar or purchasing a unit, usurps their right to set all terms on the disposition of the product of their efforts. As such, it is indistinguishable from theft.

  The only time scarcity is relevant is in grasping the fact that before the creator devised his design the value of it did not exist, and afterwards, it did - the fact that is the source of his exclusive right.

  
  

  Published: November 30, 2008 12:29 PM

• MichaelM

  @Anonymous

  Sorry, I somehow I missed this:

  "Absent a contract, the possessor of a copy of information is just as much an owner of that copy as the creator is of the original."

  If you hold this, you are not anti-IP. All I have said is that the creator and manufacturer have the sole right to define the terms of the contract under which they transfer the product to you. A patent or copyright under a moral government means only that the government will guarantee compliance with your contract up to 50 or whatever years after your death.

  The notice "patent no.1000001" and "copyright 2008 all rights reserved" are themselves stated terms of your contract to purchase. You are free to modify that contract as you wish. We do that every day now by allowing certain uses usually protected if the owner so authorizes. And that is the correct way to do it. Exclusivity should be implicit up to the time limit unless explicitly modified.

  Setting the "only on condition of contract" requirement is somewhat superfluous, however, since in a laissez-faire society, all exchanges of values are contractual in the eyes of the government, either explicit or implied.

  Published: November 30, 2008 1:04 PM

• Anonymous

  @ MichaelM

  "Setting the 'only on condition of contract' requirement is somewhat superfluous, however, since in a laissez-faire society, all exchanges of values are contractual in the eyes of the government, either explicit or implied."

  You appear to be assuming that one can only come into rightful possession of information through an exchange (implying a contract).

  I am claiming that if someone comes into possession of information without initiating force and without being party to an implicit or explicit contract, they are the proper owners of that information and may do with it as they see fit (including copying and distributing it to third parties).

  Published: December 1, 2008 12:01 AM

• Rob Biddle

  - MichaelM said:
  "All I have said is that the creator and manufacturer have the sole right to define the terms of the contract under which they transfer the product to you."

  "The notice "patent no.1000001" and "copyright 2008 all rights reserved" are themselves stated terms of your contract to purchase. "

  
  - Anonymous said:
  "You appear to be assuming that one can only come into rightful possession of information through an exchange (implying a contract)."

  BINGO!

  The above statements sum up the conflicting points pretty well. The strict Objectivists seem to be evading the fact that information can exist as both a physical pattern (bits on recordable media, paint on a canvass, or the arrangement of molecules that make up an automobile) and also as concepts integrated into a mind.

  Even though most of my previous example scenarios were ignored I'll throw out another one:

  There exist Savant type people who have extraordinary abilities when it comes to storing and recalling perceptual data. In the future technologies will most likely give ordinary people these abilities as well, but for the sake of argument let’s stick with the Savant as the subject of this scenario since it is a real possibility today.

  Suppose a Savant is able to walk through a furniture store and remember every detail he sees in regards to the pieces of furniture he likes. These designs are patented, but since he doesn't actually purchase them he never even sees the Patent Claim that is included with the furniture. When he gets home he proceeds to hand carve exact replicas of the pieces that he liked.

  To say that the Patent Holder has any right to prevent the Savant from doing this is to say that the Patent Holder has a right to wedge himself somewhere between the Savants perception and his ability to pursue his values.

  I really don't see how an Objectivist can maintain that belief still claim to be objective.
  

  Published: December 1, 2008 10:39 AM

• Michael Smith

  Jason asked:

  Why does a person's mental actions give him a moral claim to all applications of his mental discoveries, and the right to prevent others from applying those same mental discoveries once they have mentally digested it themselves?

  Rearden didn’t discover the formula for Rearden Metal. Rearden created, i.e. produced, the formula for Rearden Metal. Prior to Rearden’s efforts, the formula for Rearden Metal did not exist for Rearden or anyone else to discover.

  That formula -- embodied in physical form as rail for railroads, pipe for pipelines, etc. -- is a value to anyone needing such products.

  Rearden’s moral claim to that value rests on the fact that he -- and he alone -- created it. As its creator, he -- and he alone -- is morally entitled to possess everything that people are willing to give in trade for his creation, such as other values like money .

  Anyone who takes physical possession -- without Rearden’s permission -- of values given in trade for Rearden‘s creation, has taken physical possession of Rearden’s property and has thus initiated the use of force against him.

  Libertarian’s cannot grasp this because they do not understand that the non-initiation of force principle is not the source of man’s rights, but is instead derived from the fact of man’s rights. Thus, when they evaluate the act of copying another man’s creation -- and observe no initiation of force -- they conclude that such copying is a right. This blinds them to the fact that what follows the copying -- taking possession of values offered in trade for the creator’s value -- is indeed an initiation of force against the creator.

  I agree completely with MichaelM’s comments about the source of the “Objectivist-Libertarian impasse” as he so aptly called it. As long as libertarians try to derive man’s rights by using the non-initiation of force principle as some sort of an axiom divorced from more fundamental principles of ethics, the impasse will remain and libertarians will continue to believe that the creators of some of mankind’s greatest values cannot own them.

  Published: December 1, 2008 2:02 PM

• MichaelM

  @Anonymous and Rob Biddle

  How one acquires his ability to duplicate something created by another is not relevant. The creator is the rightful owner and a creation is something that:

  BUT FOR THE CREATOR'S EFFORTS, IT WOULD NOT EXIST.

  That is the moral claim that validates the political right to IP. After that validity is established, the issue moves from the philosophical principles of ethics and politics to the philosophy of law to define how such various cases would be handled to protect the rights of all.

  This is important! The Objectivist position is that until you have established that IP is a valid political right on moral grounds, your questions are premature. You are only able to disregard this fact, because you have no philosophical system within which you can validate the right. As we have repeatedly said, you are attacking the problem backwards. To help you to understand this, here is another instance of the same.

  Objectivism validates an absolute right to property on the moral principle of man's need by his nature to autonomy over his self and its product. A logical conclusion consistent with those principles is that a government may not tax its citizens (all exchanges of values must be voluntary). We are barraged with questions of how any complex government could make that work, as if asking it constituted an argument. But the ability or inability to explain how - many years from now and in a population that would be dominated by capitalist sympathizers - is not relevant to the sanction against taxation. That sanction is already valid, with or without any answer to that question.

  So, in the context of the treatment of potential violations of the right to IP:

  The law must disregard all claims of the savant who fails that test to establish himself as the creator (above). He is just a copier.

  We have already established that the law could justifiably treat totally simultaneous creation/application/publication as deserving shared rights to the benefits.

  We have also resolved the dilemma of the shipwreck survivors who may copy, because they are not living in a governed society so there are no political rights that can be violated by copying IP.

  Anonymous, you have presented a slightly different variant: the ability to produce something without knowledge that it already exists.

  The law must treat him differently from the savant. Because he did not create it (it already existed), he cannot own the IP. But because he had no knowledge of it (and let's say could not have known), the law would not punish him. The law should even let him keep and use one for himself. But in the marketplace, he may not claim benefits from it, because it already exists there thanks to the efforts of the original creator.

  It is at this point that a moral government would establish a system for the protection of IP that entails certain minimal responsibilities for creators to claim protection. That would include some effort while developing a new idea to discover if it already exists. It would also include the requirement on creation of IP, to register, publish, and make easily accessible the awareness that it does then exist.

  Creation is at the core of IP. Its protection is the means by which a moral government guarantees the greatest reward, not just for the time or mental labor or physical labor invested, but for any product of those investments that will constitute an addition to the sum of all human knowledge and capacities accumulated throughout history that benefits all mankind.

  Published: December 1, 2008 4:22 PM

• Anonymous

  @MichaelM

  "How one acquires his ability to duplicate something created by another is not relevant."

  We are obviously coming from completely different perspectives on this issue. I was talking about the right to employ rightfully acquired information. This right is consistent with the right to employ other types of rightfully acquired property. It is an attempt to apply the concepts of physical property to INFORMATION.

  You wrote that:

  "Objectivism validates an absolute right to property on the moral principle of man's need by his nature to autonomy over his self and its product."

  If you are trying to claim that peaceful copying is incompatible with survival (and thriving), I welcome you to support your claim.

  P.s. I'm going on a trip, so internet access may be irregular.

  Published: December 1, 2008 7:41 PM

• Jason

  "BUT FOR THE CREATOR'S EFFORTS, IT WOULD NOT EXIST."

  Not until someone else creates it, or re-creates it. Also, I am an Objectivist, or an Objectivist-ist, who believes Rand was wrong on this issue. My argument hasn't started from the non-initiation of force, but from the idea that we survive by reason and action. If, using my reason, I create a product that is exactly the same as another product that someone else created, why am I limited in applying my reason to the formation of the physical property which I rightfully own (unless I agreed not to via direct contract)?

  I agree with Kinsella in that intellectual property rights and physical property rights are mutually exclusive. If some people have the right to the monopolistic use of ideas, then I don't have full rights to my physical property. If I don't have full rights to my physical property, then using my faculty of reason to survive is limited. What good is my reason if I can't use it to improve my own material well being?

  It is not just the fact that men survive by reason that we have property rights. There is also the fact that existence is finite or, more narrowly, resources are finite. If we did live in a Heaven where resources appeared from a wish, then there would be no need for the concept of property rights. (Maybe you would argue that even in Heaven, someone who wishes for something first is therefore entitled to keep others from wishing for it.)

  Published: December 1, 2008 11:18 PM

• MichaelM

  @Anonymous

  "It is an attempt to apply the concepts of physical property to INFORMATION."

  You can't see the tree for the forest. In the entire forest of "INFORMATION" there is only one tree you can apply the concepts of physical property to: the one that constitutes a CREATION.

  By persistently dragging the overly broad word of "information" into your scheme, you subvert your own quest to understand.
  Instead of choosing a word or words that specifically target the essence of IP, you fall back on a big-tent term that sweeps up a vast array of irrelevant human actions. Consequently you have smothered the very thing you are looking for; you have lost track of it in the crowd; you have made it easy for yourself to smuggle in a series of counterfeit candidates for the title of "property."

  So long as you continue to do that in order to evade a recognition of the unique value of creation, your attempt is doomed.

  --------------------

  "If you are trying to claim that peaceful copying is incompatible with survival (and thriving), I welcome you to support your claim."

  And this is a perfect example of your ability to sweep the irrelevant into your "information" tent.

  All "peaceful copying" is compatible with survival and thriving. But copying IP is not "peaceful", because it is property and copying it is a taking. As in the case of fraud, the force initiated is not seen, because it is indirect force. It is the force that one must utilize to restore the value taken.

  Michael Smith has repeatedly pointed out the fallacy of using non-initiation of force as a primary principle - the latest just two posts back. Here that fallacy masquerades as "the peaceful copying of information."

  Published: December 2, 2008 1:00 AM

• MichaelM

  @Jason

  "Not until someone else creates it,..."

  Yes. But no one ever will, because creation only happens once. Your statement is a self-contradiction dependent on a stolen concept (using the word creation to undermine its meaning.)

  Published: December 2, 2008 1:18 AM

• Anonymous

  @MichaelM

  "In the entire forest of 'INFORMATION' there is only one tree you can apply the concepts of physical property to: the one that constitutes a CREATION."

  Matter and energy become property as a result of ORIGINAL APPROPRIATION, not creation (unless you believe that matter and energy can be conjured up out of the ether).

  “copying IP is not ‘peaceful’, because [IP] is property and copying it is a taking.”

  First of all, you assumed the very point in question (i.e. whether or not IP is actually property). Then, you went on to define copying as initiating force (again, argument by assumption). You also failed to consider the fact that copies can be given away for free (without an exchange taking place and without a contract being entered into), thereby invalidating your claim that “copying is taking”.

  Published: December 3, 2008 5:02 AM

• Rob Biddle

  @MichaelM

  ---- “BUT FOR THE CREATOR'S EFFORTS, IT WOULD NOT EXIST.
  That is the moral claim that validates the political right to IP.” ----

  
  The validity of this statement as a Moral Claim depends solely on what “IT” is. “IT” implies identification of something.

  In the case of real physical property “IT” actually refers to an entity that can be perceived and interacted with (possessed and exchanged etc).

  Our minds can think about real property, but as Ayn Rand said “a mind without a body is a ghost”.

  Real property is that which we can not only think about, but also physically interact with. We can think of a new creation, at which point it is a concept in our mind, but until we physically interact with matter to transform it into a new creation “IT” doesn’t exist.

  When “IT” is created “IT” is “IT”; but “IT” is not every potential instance of something like “IT”.

  In the case of IP “IT” is a ghost. IP claims that “IT” and every instance of “IT” are the same thing, that A is A but also B,C,D..Z..1,2….99999 etc.

  The concept of IP contradicts the Law of Identify. Therefore it is invalidated at the most fundamental philosophical level.
  

  Published: December 3, 2008 9:45 AM

• MichaelM

  @Anonymous

  This is just an instance of short-term memory loss. Prior posts have already clarified that matter and energy are never "owned" by anyone, because they were not created by anyone. They are subject to the control of the one who contributed the improvements embodied in them. If you want to re-open that subject you will have to bring more to the table than your empty assertion that the Libertarian construct of "original appropriation" constitutes a justification to the contrary.

  That copying is theft has likewise been dealt with above and is not an "assumption", it is based on all of the evidence previously presented. You may also reopen any part of that, but not without offering something new to the debate.

  Finally, there is no such thing as changing the ownership of something absent an exchange. Giving something to someone without demanding something in return constitutes an exchange for whatever value (the abstract concept that covers all forms of property/benefit) you have already received or expect to receive in a form other than something from the recipient. Love is an exchange, admiration is an exchange, respect is an exchange, charity is an exchange, me writing this is an exchange, and on, and on, and ...

  Published: December 3, 2008 10:44 AM

• MichaelM

  @Rob Biddle

  More memory problems ...

  "IT" was defined in my Nov 24 6:53 pm reply as:

  "...whatever potential position that application can generate in the value hierarchies of others..." from my full statement of the basis for IP:

  When someone creates an application that previously did not exist, only he has a moral claim to benefit from whatever potential position that application can generate in the value hierarchies of others, because that position is a direct result of his and only his actions.

  That one must embody that which generates the value does not entitle you to equate the embodiment with the value. Absent the bucket of chemicals my friends consist of, I could not value them. But the chemicals are not the source of their value to me - their mind and its contents as manifested in their choices and actions are. Matter is just the medium of value.

  Published: December 3, 2008 11:13 AM

• Rob Biddle

  @MichaelM
  ----"When someone creates an application that previously did not exist, only he has a moral claim to benefit from whatever potential position that application can generate in the value hierarchies of others, because that position is a direct result of his and only his actions."----

  That statement doesn't make sense. I'll illustrate why.

  Suppose the following:

  Person_A patents Erythromycin. Later Person_B patents Azithromycin.
  Person_C has a bacterial infection which can be cured by either drug. Reasonably they are going to value them the same.

  By your logic Person_B would have no right to offer Azithromycin to Person_C because it would be infringing on the position within the hierarchy of Person_C's values because in the absence of Azithromycin the only occupant of that position would be the Erythromycin patented by Person_A.

  Be careful how you reply, because if your replay is along the lines of "those are two different applications so the claim doesn't apply" then you are contradicting your claim that "whatever potential position that application can generate in the value hierarchies of others" is "IT" (the property). In this scenario the effect is exactly the same as it would be if the original product (Erythromycin) were outright copied and produced by Person_B.

  Published: December 3, 2008 2:05 PM

• MichaelM

  @Rob Biddle

  One of the most important words in this definition is the word "whatever". It obliterates all limitations or qualifications you or anyone else (and especially the government) might want to place on the evaluation of a creation by any prospective purchaser. The creator's right to benefit from whatever price a buyer is willing to pay, under whatever circumstances, and for whatever reason is exclusive.

  Consequently, I do not see anything in your hypothetical that is applicable to that right.

  Published: December 3, 2008 11:38 PM

• Anonymous

  You have made the curious assertion that “matter and energy are never ‘owned’ by anyone”, but CAN be “subject to [people’s] control”. I fail to see the difference between being owned by someone and being subject to their control. Perhaps you meant to say that matter and energy can only be owned as a consequence of being improved. However, since “improvement” is not an objective term, it can not be the basis of an objectively defined right. On the other hand, original appropriation IS objectively defineable and determineable and CAN serve as the basis of an objectively defined right.

  “Giving something to someone without demanding something in return constitutes an exchange for [something NOT] from the recipient.”

  First of all, you are not using the term “exchange” in its economic sense (i.e. a reciprical transfer). Secondly, if the recipient does not give anything in return, the recipient has NOT engaged in exchange (because he has not given something in return for something else). Since he has not engaged in an exchange, he is not bound by any contract, implicit or otherwise. If someone recieves something without asking for it and without being asked if he wants or will accept it, he may not ethically be subject to any “terms of use”.

  Published: December 4, 2008 6:19 AM

• MichaelM

  @Anonymous

  I'm surprised it took this long for someone to raise the control v ownership question. I have been aware of the appearance of contradiction from the start, but persisted, because this concept is one of Rand's most original and radical contributions. It surprises everyone, so I like to keep them separate to drive the point home.

  My first impulse was to say that I don't care how you state it, the result is the same. The objectivity of the definition of improvement is possible in a way that leaves open a wide range of actions. It is an issue that a democratic vote may decide, because whatever definition they consent to, no one can lose a right, as no one owns the matter in question in the first place.

  But another thought I've had tells me that there is a difference between ownership and control, e.g. a thief controls the property he stole, but does not own it. Ownership implies a right that simple control does not. The difference in these two instances is that the one who improves property controls the matter without having any right to it and without violating any right to it either. The thief's control without right, however, violates another's right and so is a crime.

  Parents control the lives of their children without owning them as long as that control violates no one else's rights. When the children become self-sufficient, the parents lose control because it would otherwise violate the rights of the child and by extension, of everyone else. The same is true of someone in a coma or certifiably insane.

  I remain equally ok with calling the control over matter a "right" gained as a consequence of one's right to the improvements. Barring evidence of some unseen negative consequence, however, I prefer this formulation. It highlights the non-ownership of uncreated existent entities while focusing attention on the real source of rights. It is profoundly illuminating and efficient.

  -----------------

  I do not need to establish any obligation of the recipient of a gift vis a vis IP, because the giver does not have any rights in the IP to give away (unless the giver is the creator).

  I was only explaining the little known fact that all human interrelationships are exchanges - important to the primary mandate of laissez-faire capitalism that all exchanges among men shall be voluntary. I will go out on a presumptuous limb and say that you will not be giving gifts to any random assortment from humanity this year. Rather, you will give to your recipients gifts of value proportionate to the contribution their life represents to your life. Your gift satisfies a personal obligation to repay the recipient for that contribution. It is a reciprocal exchange. If they give you a gift it will not be (or should not be) just because you gave them one. It should be for the same reason I just stated. That is the rational meaning of "exchanging gifts".

  At a discussion group meeting of Objectivist newbies, someone asked if giving gifts posed a dilemma for anti-altruist egoists. The answer I suggested was that we should all remember that it is far more blessed to exchange than it is to just give or receive.

  Published: December 4, 2008 10:01 AM

• Per-Olof Samuelsson

  MichaelM: "You are correct, the very principle of property rights is at stake."

  I know I'm right on this issue! ;-)

  (I have an even more fundamental argument up my sleeve; maybe I'll present it later.)

  Published: December 4, 2008 10:29 AM

• Rob Biddle

  @MichaelM

  You said:
  ---- “BUT FOR THE CREATOR'S EFFORTS, IT WOULD NOT EXIST.
  That is the moral claim that validates the political right to IP.” ----

  I said that it depends on what "IT" is. Since "IT" is what you are claiming is Property.

  You said:
  ---- " "IT" was defined in my Nov 24 6:53 pm reply as: ...whatever potential position that application can generate in the value hierarchies of others..." ----

  So putting your statement together we get this:
  ----- "BUT FOR THE CREATOR'S EFFORTS, whatever potential position that application can generate in the value hierarchies of others WOULD NOT EXIST." ----

  I then illustrated an example of how that "potential position" could exist and be filled by a different application/product which produced an identical result.

  You then said:

  ---- "The creator's right to benefit from whatever price a buyer is willing to pay, under whatever circumstances, and for whatever reason is exclusive. Consequently, I do not see anything in your hypothetical that is applicable to that right." ----

  This is either a straw man argument or you've missed the point I was trying to make.

  I'm not arguing about the real rights that go along with property. I'm arguing that IP is not property. I am trying to show that what you claim as property doesn't make any sense and I think the illustration I gave does a pretty good job of that.

  The illustration shows that using your definition of IP it is possible for the results of copying to be exactly the same as that of a different product altogether. So you would have to be against the production of many closely related creations for the same reasons you are against copying in order to be consistent.

  Published: December 4, 2008 12:02 PM

• Aaron

  “The objectivity of the definition of improvement is possible”

  Well, I’m happy to hear it. Perhaps you could provide us with an objective definition of improvement?

  “Ownership implies a right that simple control does not.”

  You weren’t reffering to “simple control” when you wrote:

  “[Matter and energy] are subject to the control of the one who contributed the improvements embodied in them.”

  Clearly, you meant that matter and energy can be subject to RIGHTFUL control (i.e. ownership), contradicting your prior sentence claiming they couldn’t.

  “I [am] ok with calling the control over matter a ‘right’ gained as a consequence of one's right to the improvements.”

  Are you then retracting your prior claim that matter and energy can not be owned?

  -----------------

  “I do not need to establish any obligation of the recipient of a gift vis a vis IP, because the giver does not have any rights in the IP to give away (unless the giver is the creator).”

  By all means, let’s assume that the giver is the creator.

  Published: December 4, 2008 2:55 PM

• Aaron [previously Anonymous]

  Sorry. Don't be confused by the name change.

  Published: December 4, 2008 2:59 PM

• MichaelM

  @Aaron aka Anonymous

  Improvement: something that makes something else better. Example: A fence around a piece of land.

  There is a limitless number of actions that would objectively improve raw materials. What is the point to this question?

  ----------------

  "Are you then retracting your prior claim that matter and energy can not be owned?"

  Certainly not. My position has been and is that one's relationship to the matter in which one's creation/improvement is embodied is different from one's relationship with the creation/improvement itself. I was merely musing over the best possible way to refer to these to accommodate and reflect that difference.

  The political right that conveys ownership is applicable solely to the product of human actions. Therefore it is inapplicable to matter - including any matter in which the product of human actions is embodied.

  "Clearly, you meant that matter and energy can be subject to RIGHTFUL control (i.e. ownership), ..."

  You've been deceived by your own ambiguous phrasing. It appears on the surface that "RIGHTFUL control (i.e. ownership)" refers back to the matter and energy, but it doesn't. It refers forward to the product of human actions aka the creation/improvement.

  What is rightfully controlled and owned is the creation/improvement. The matter in which that is embodied can be subject to THAT rightful control also, but only INCIDENTALLY and NECESSARILY because they are inseparable.

  Poof! Contradiction gone.

  -----------------

  The recipient of a gift from a creator that is a product embodying his creation transfers none of his IP rights unless so specified by the creator.

  Whether the creator does or doesn't has nothing to do with any other creator of a different product per Rob Biddle's hypothetical of Dec 03, 2:05.

  Published: December 5, 2008 12:18 AM

• MichaelM

  @Rob Biddle

  Sorry, I knew my reply would have been easier to understand if I had framed it in your terminology, but it was too late at night to write an addendum, so I let it go knowing you would come back for the rest.

  Essentially, the problem arises because you seem to have over-interpreted the right to the position in the hierarchies of others as a claim on that position that would exclude anyone else's claim. It is not. Rather it is an exclusive claim on whatever benefit is forthcoming subject to the will of any buyer.

  If product A costs $X and a different product B that, in this case, will produce the same results also costs $X , the one who earns a higher position in the buyer's value ranking gets the $X he has to spend, and the other gets $0. At the same time, the creator of the new and improved power drill and the creator of the new flavor of aged Tequila get $0 too , because the buyer valued the medicine he chose more than those two items in the question of how to spend that $X. If the buyer chooses A over B because the pill was able to be smaller due to the nature of A's creation, then that was the aspect of the creation that earned A the position in the customer's hierarchy of values to caused him to give A the $X and not B.

  In short, IP protects nothing more or less than a creator's exclusive right to compete in the free market with his creation for the subjective evaluations (that may or may not be objectively arrived at) of the potential buyers in that market. A moral government must guarantee that no third party will interfere in that process. The details underpinning this are abundant in the preceding 100 comments.

  
  

  Published: December 5, 2008 10:30 AM

• Aaron

  @MichaelM

  Sorry for the delayed response.

  "Improvement: something that makes something else better."

  Exactly my point. The terms "improvement", "better", and "value" all refer to the subjective utility of the valued to the valuer. There is no way to objectively determine whether a transformed resource has increased in value, decreased in value, or remained the same.

  Published: December 11, 2008 5:49 AM

• MichaelM

  @Aaron

  The objective definition of the value of any improvement is:

  Any position it might attain in the (subjectively defined) hierarchy of values of any party relative to all other alternatives available to that party.

  A moral government may not interfere by specifying any particular assessment of value for any improvement. It protects the right of the creator to whatever value anyone else may place on it if and when, and not before, someone does.

  No one's rights are violated by giving someone the exclusive right to the disposition of something that has no value to anyone. The second someone desires it however, a value has accrued to it. Government must guarantee that the achievement of that value shall be on terms set by the creator/owner.

  In short: the objective value of any improvement is its subjective value to all other human beings.

  Published: December 12, 2008 10:24 AM

• Aaron

  @MichaelM

  You stated that a person could be granted "the exclusive right to the disposition of something that has no value to anyone."

  But did you not also say that matter and energy "are subject to the control of the one who contributed the improvements embodied in them"?

  If "improvement" is the criteria for ownership, any thing which "has no value to anyone" has not been improved and, therefore, can not be owned.

  Published: December 13, 2008 5:08 AM

• MichaelM

  @Aaron

  "anyone" in that context has to mean anyone else. It is (or should be) implied that the "someone" granted the right improved it per his own values.

  That statement was merely added to complete the idea that all protected values are determined by the subjective judgments of the market, and when those values for a paticular improvement are zero, no one is harmed and it costs the government nothing to continue to regard it as "protected" on the record if the owner/improver met the requirements defined for establishing a claim to protection. Protection is ready to be exercised if and when others do value it and anyone decides to violate his exclusive right to it.

  Published: December 15, 2008 4:09 PM

• Aaron

  @MichaelM

  To clarify the point, are you saying that a natural resource becomes owned once it is altered in such a way that its subjective utility (to the person who altered it) has increased?

  Published: December 16, 2008 3:36 AM

• MichaelM

  @Aaron

  Yes, in this moral context: if previously unowned, any improvement one values becomes "owned" in the sense that one is morally justified in continuing to possess it and use it. But that is not ownership in the political sense.

  A moral government is only concerned with interrelationships among men and never with one's relationship to oneself. That is why I said no one has anything to lose by granting exclusivity to something no one else but the creator values. The government does that by objectifying in laws what it will do if and when anyone else values it and violates that exclusivity, but otherwise, taking no action (i.e., not interfering with the creator's possession and use).

  The government's job is to translate moral ownership from the context of the individual into the context of a society of interacting individuals without loss.

  Published: December 17, 2008 12:51 PM