Notes on Intellectual Property

[George H. Smith]

I want to mention some problems with the notion of intellectual property. I will present these in the form of "notes to self," rather than in a systematic fashion. They cover only a few issues, albeit fundamental ones. The following is largely taken from an old computer file that I wrote around 25 years ago, though I have cleaned things up a bit. (My computer notes, in turn, were based on handwritten notes dated July 1982. I think I was planning to write an article on IP for "The Voluntaryist" but never got around to it.)

Benjamin Tucker, an opponent of IP, once said, If you want to keep an idea FOR yourself, i.e., if you want to claim exclusive control over it, then keep it TO yourself. Don't reveal it to anyone else. If you do communicate the idea to other people, then you have either sold your idea or given it away for free, so you can no longer claim exclusive control over it.

I would add the following to Tucker's insight. Ideas cannot be property in the same sense that physical objects are property. If I have a car, I can literally transfer the car to you, in which case I no longer have the car. Property rights are necessary with material objects because control by one person means that no one else can control it.

Ideas cannot be transferred in the same way. As Thomas Jefferson put it in his famous metaphor about ideas, if I use your candle to light my candle, this will not extinguish your candle or make it shine less brightly. You can still use YOUR flame however you wish, just as I can use MY flame however I wish. (Please, no obvious and knuckle-headed examples about arson.)

Jefferson's metaphor is misleading. Why? Because an idea (or concept) cannot be used unless it is first understood. I cannot put my head against your head and thereby assimilate your ideas. Nor will I understand what you say or write if I don't pay attention. Nor, if you communicate your ideas through speech or writing, will I automatically understand them. Intellectual LABOR is required on my part. I must use my reason to interpret the signs and symbols that you provide, and in doing so I invest my OWN intellectual labor in those ideas. At this point the ideas in question become my ideas as much as they are yours, and I may use my ideas in any manner that I like.

A major problem here is determining the referent of "property" in "intellectual property." What is the specific unit of this concept? Some defenders of IP claim that ownership is claimed not over an abstract idea or ideas but over the concrete manifestation of ideas in a particular form, e.g., as found in books.

Suppose I purchase a popular copyrighted novel. That I own this book in some sense will not be denied by IPers. Nevertheless, an IPer, however much he will concede that I own the physical book, will deny that I own the novel itself, i.e., the specific story and sequence of words that are used to express that story.

Let's take a look at this claim. Can someone own a story? I don't see how, but let's pass to the more specific issue of how a story is expressed in words. Does the author own the particular sequence of concrete words contained in his novel? And if so, is this ALL for which he is claiming ownership?

Let's assume this is true. So what happens if the novel is translated into German and other languages? In such cases the same story will be told with different words and different sequences of words. Does the author also own all such sequences, even though he never wrote those words and may not even understand them? IPers will generally say yes, the author own all translations of his novel.

If this is the case, it means that ownership is not merely claimed over a particular sequence of words written by the author. The ownership claim is much broader, and applies to any sequence of words that tells the same story. So it seems that the ultimate claim of ownership is over the story itself, after all, and this brings us to the key question: How can someone own a story? If I want to read the story to my child, must I first obtain the permission of its owner? Suppose I paraphrase the story without the owner's permission. Have I thereby violated his property rights in the story?

A lot more needs to be covered in regard to IP, but keep in mind the fundamental purpose of my questions and examples about IP -- in this case, a novel. We need to pinpoint the nature of the "property" over which ownership is claimed. If we cannot do this satisfactorily, if we cannot be precise about the nature of the "property" in question, then the case for IP will collapse before it ever gets off the ground.

Ghs

[George H. Smith]

The best and most extensive case for intellectual property was written by the libertarian anarchist Lysander Spooner:

http://www.lysanders...ct/contents.htm

THE LAW OF

INTELLECTUAL PROPERTY;

OR

AN ESSAY ON THE RIGHT OF AUTHORS AND INVENTORS

TO A PERPETUAL PROPERTY IN THEIR IDEAS.

VOL. I.

BY LYSANDER SPOONER.

BOSTON:

PUBLISHED BY BELA MARSH,

15 FRANKLIN STREET.

1855.

CONTENTS OF VOLUME I

PART I:

NOTE

CHAPTER 1. THE LAW OF NATURE, RELATIVE TO INTELLECTUAL PROPERTY

SECTION 1. The Right of Property in Ideas to be proved by Analogy.

SECTION 2. What is Wealth?

SECTION 3. What is Property?

SECTION 4. What is the Right of Property?

SECTION 5. What Things are Subjects of Properly?

SECTION 6. How is the Right of Property Acquired?

SECTION 7. What is the Foundation of the Right of Property?

SECTION 8. How is the Right of Properly Transferred?

SECTION 9. Conclusions from the preceding Principles

.

CHAPTER II. OBJECTIONS ANSWERED

SECTION 1. Objection First

SECTION 2. Objection Second

SECTION 3. Objection Third

SECTION 4. Objection Fourth

SECTION 5. Objection Fifth

SECTION 6. Objection Sixth

SECTION 7. Objection Seventh

SECTION 8. Objection Eighth

SECTION 9. Objection Ninth

SECTION 10. Objection Tenth

SECTION 11. Objection Eleventh

SECTION 12. Objection Twelfth

SECTION 13. Objection Thirteenth

SECTION 14. Objection Fourteenth

SECTION 15. Objection Fifteenth

CHAPTER III. PERPETUITY AND DESCENT OF INTELLECTUAL PROPERTY

SECTION 1. Perpetuity of Intellectual Property

SECTION 2. Descent of Intellectual Property

CHAPTER IV. THE SALE OF IDEAS

CHAPTER V. THE POLICY OF PERPETUITY IN INTELLECTUAL PROPERTY

PART II:

CHAPTER VI. THE COMMON LAW OF ENGLAND RELATIVE TO INTELLECTUAL PROPERTY

SECTION 1. What is the Common Law of England

SECTION 2. Why the Common Law Right of Property in Ideas has not been more fully Acknowledged

SECTION 3. Review of the Case of Millar v. Taylor

SECTION 4. Review of the Case of Donaldson and another, vs. Becket and another

Note how Spooner argues not just for IP, but for the perpetual rights of authors and inventors. Here as elsewhere Spooner insists on consistency, and, if IP is valid, then Spooner is right. There is no reason why intellectual property rights (e.g., copyrights and patents) should expire after a certain amount of time has passed. This would be like saying, yes, you can own a house or car but only for x number of years.

Ghs

[caroljane]

George,

I try to read most of your erudite contributions to our community knowlege, but I think I will be giving this one a miss.

All of my intellectual property comes from the second-hand store.

Best wishes,

Rose

[9thdoctor]

Can someone own a story? I don't see how, but let's pass to the more specific issue of how a story is expressed in words. Does the author own the particular sequence of concrete words contained in his novel? And if so, is this ALL for which he is claiming ownership?

How about a character? Terry Nation created and maintained control over the Daleks, and then there's Darth Vader and Chewbacca belonging to George Lucas. In the mid to late eighties an x-rated rapper put out albums under the name Luke Skywalker until he was sued and made to cease and desist.

[George H. Smith]

Can someone own a story? I don't see how, but let's pass to the more specific issue of how a story is expressed in words. Does the author own the particular sequence of concrete words contained in his novel? And if so, is this ALL for which he is claiming ownership?

How about a character? Terry Nation created and maintained control over the Daleks, and then there's Darth Vader and Chewbacca belonging to George Lucas. In the mid to late eighties an x-rated rapper put out albums under the name Luke Skywalker until he was sued and made to cease and desist.

I don't know for sure. To ascertain the answer, we would need to explore what we mean by "a character."

Suppose you draw an original cartoon caricature of a cow. It is your creation, so do I violate your property right in the caricature if I copy it? If so, this would mean that I can violate your rights if I do nothing more than sit down with paper and pencil and draw something. Sounds far-fetched, indeed outright oppressive, to me.

Some IPers might claim that I violate your intellectual property (assuming the cow character is a form of IP) only if I sell my copy or copies in an effort to make money. This strikes me as an indefensible distinction. Suppose I steal your car. Is this okay so long as I do not attempt to sell it but keep it instead for my own use? Obviously not. Once again, when we speak of IP the exact nature of the "property" in question is very fuzzy.

Of course, characters need not be drawn or animated. There can be characters in novels and, as you point out, in movies. I haven't analyzed such examples in detail, but I suspect they would follow the same pattern as our cow.

One area that troubles me is trademarks, and I'm not sure how to deal with them. May a shoddy electronics company duplicate the Sony trademark on its packaging? We might call this fraud, and I am sympathetic to this position, but I remain unsure how this claim should be justified.

One last thing: I am not writing this stuff as part of a crusade against IP. Rather, I am very interested in the fine theoretical points that are entailed by IP. I am writing this stuff primarily to gain a greater understanding of property rights and their presuppositions.

In truth, I would be pleased if someone could persuade me to the IP position. My problem is that I have never been able to devise a justification that holds up. The arguments, as I said before, tend to collapse even before they get started because of the fuzziness of the "property" in question. If we cannot identify the property in "intellectual property," then we cannot defend the right associated with that supposed property.

Ghs

[George H. Smith]

George,

I try to read most of your erudite contributions to our community knowlege, but I think I will be giving this one a miss.

All of my intellectual property comes from the second-hand store.

Best wishes,

Rose

I buy most of my clothes from a nearby thrift shop. I hit the jackpot a few weeks ago when I bought a heavy winter coat, in like-new condition, for $20. It is an Abercrombie and Fitch. I figured the coat sells for around $250 new, but when I went to the Abercrombie and Fitch website I learned that the exact same coat sells for $700.

I don't pay anything for my ideas, however. I have a bottomless well of those, and they don't cost a cent.

Ghs

[caroljane]

George,

I try to read most of your erudite contributions to our community knowlege, but I think I will be giving this one a miss.

All of my intellectual property comes from the second-hand store.

Best wishes,

Rose

I buy most of my clothes from a nearby thrift shop. I hit the jackpot a few weeks ago when I bought a heavy winter coat, in like-new condition, for $20. It is an Abercrombie and Fitch. I figured the coat sells for around $250 new, but when I went to the Abercrombie and Fitch website I learned that the exact same coat sells for $700.

I don't pay anything for my ideas, however. I have a bottomless well of those, and they don't cost a cent.

Ghs

But I guess the theme of IP is, they don't pay a cent either.

[9thdoctor]

Some IPers might claim that I violate your intellectual property (assuming the cow character is a form of IP) only if I sell my copy or copies in an effort to make money. This strikes me as an indefensible distinction.

But it’s the operative distinction. Why would George Lucas sue someone drawing Chewbacca on a private notepad? How would he even know about it?

Once again, when we speak of IP the exact nature of the "property" in question is very fuzzy.

Indeed, though there are copyright and trademark lawyers who can surely spell it out in ample (even nauseating) detail.

In truth, I would be pleased if someone could persuade me to the IP position. My problem is that I have never been able to devise a justification that holds up.

Probably won’t be me. I haven’t given the subject a whole lot of thought.

[syrakusos]

THE LAW OF

INTELLECTUAL PROPERTY; OR AN ESSAY ON THE RIGHT OF AUTHORS AND INVENTORS TO A PERPETUAL PROPERTY IN THEIR IDEAS. VOL. I.

BY Michael E. Marotta.

AustiN:

PUBLISHED BY LAGOSI & NGAIO,

15 BENJAMIN STREET. 2011.Austin:

PUBLISHED BY Lagosi & Ngaio, 15 BENJAMIN STREET. 2011.

George, let me brutally honest. From what little I know about women, it is not just that even if you win the argument, she is not coming back, but especially if you win. If you want her back, you have to apologize ... whether or not you were wrong... and at least try to sound like you mean it...

[syrakusos]

George, all kidding aside, we need to think clearly about intellectual property. Our ideas derive from our living on land. Land is finite, exclusive, and rival. Even machinery does not follow that model; and ideas certainly do not. Yet, intellectual property exists. It must be created. The creation of the object is the creation of the ownership. That much cannot be denied. What it then means is the problem we seek to solve.

On Plagiarism

http://plagiarism.bloomfieldmedia.com/z-wordpress/

Using this tool, I found my work taken and given someone else's name by Vassar College's Francis Lehman Loeb Art Center.

http://www.copyscape.com/

... just as surely as I put my name on Lysander Spooner's above.

I have some basic claims. I have no answers to the questions they raise. Nonetheless, the axiom remains: something must first exist to be copied.

[George H. Smith]

Some IPers might claim that I violate your intellectual property (assuming the cow character is a form of IP) only if I sell my copy or copies in an effort to make money. This strikes me as an indefensible distinction.

But it’s the operative distinction. Why would George Lucas sue someone drawing Chewbacca on a private notepad? How would he even know about it?

The question isn't whether Lucus would sue someone. The question is whether he should have the right to sue someone.

Whether or not one wishes to enforce a right in such cases would be optional. Suppose someone steals a dollar from you. Would you go after him in some manner to get the dollar back? Probably not, because it wouldn't be worth your time. But you would have a right to recover your dollar, and an anal retentive type might actually do this.

Ghs

[George H. Smith]

Once again, when we speak of IP the exact nature of the "property" in question is very fuzzy.

Indeed, though there are copyright and trademark lawyers who can surely spell it out in ample (even nauseating) detail.

I seriously doubt it. With some exceptions (such as Randy Barnett), lawyers do not make good philosophers. They are too concrete-bound; i.e., they are too attached to positive law and know virtually nothing about the natural law/natural rights tradition and method of analyzing problems.

If more lawyers believed in natural rights, there would be fewer lawyers. My paradox for the day.

Ghs

[George H. Smith]

George, all kidding aside, we need to think clearly about intellectual property. Our ideas derive from our living on land. Land is finite, exclusive, and rival. Even machinery does not follow that model; and ideas certainly do not.

Machinery is also finite, exclusive, and rival. One difference is that land is fixed, whereas machinery is not. Another difference is that land is a natural resource, whereas machinery is not.

Yet, intellectual property exists. It must be created. The creation of the object is the creation of the ownership. That much cannot be denied. What it then means is the problem we seek to solve.

Intellectual products exist, but whether intellectual property exists (in the sense of a right) is the very point at issue. To first assert the existence of intellectual property and then to figure out what this assertion means has everything backward. If we don't know what "intellectual property" means, we have no business claiming a right for it.

When you create an idea, you own it. This simply means that no one has the right to compel you to reveal that idea. It does not mean that you have the right to control the idea after you voluntarily reveal it to other people.

There is an old and useful distinction in natural law philosophy between "perfect" and "imperfect" rights. A perfect right is an enforceable moral claim; this is how libertarians think of "rights" today. An "imperfect" right, in contrast, is a legitimate moral claim that is not enforceable by coercive means. We see remnants of this old usage when we say things like You had no right to deceive to me; or when a woman says to her boyfriend, You had no right to cheat on me.

Using this distinction, I would say that we have imperfect rights to our intellectual products. If someone plagiarizes your material, he has committed a serious moral wrong against you. But to assert that you have the right to use physical force against the plagiarist is an altogether different issue. It would be in my self-interest to defend such a right (for reasons that should be obvious to everyone on this list), but I won't defend any perfect right that I cannot justify to my own satisfaction.

Many years ago, during my three lectures on rights for IHS summer seminars, I argued that libertarians should be minimalists where rights are concerned. Why? Because to defend a (perfect) right is to defend an enforceable moral claim, and this introduces the legitimate use of force into the social framework. The more rights, the more cases in which the use of coercion is justifiable. We see this today with the hyper-inflation of rights, which has authorized the intervention of government in a host of areas.

Libertarians should proceed with extreme caution when attaching rights to behavior that we regard as morally reprehensible. Before I will defend a right to IP, I must be thoroughly convinced that such rights are justifiable. Can a plausible case for IP be made? Yes, of course; I can make such a case myself. But I require more than plausibility before I am willing to defend the use of physical force against other people, however much I may condemn their actions.

Ghs

[Selene]

Once again, when we speak of IP the exact nature of the "property" in question is very fuzzy.

Indeed, though there are copyright and trademark lawyers who can surely spell it out in ample (even nauseating) detail.

"...lawyers do not make good philosophers. They are too concrete-bound; i.e., they are too attached to positive law and know virtually nothing about the natural law/natural rights tradition and method of analyzing problems.

If more lawyers believed in natural rights, there would be fewer lawyers. My paradox for the day.

Ghs

Excellent points George.

The techne orientation of most law schools concentrate on passing the bar exam, rather than "studying the law." This leads to poor practice that mechanically plays into the bias and banality of the political practice that abounds in the "legal system."

The philosophy of law is one of the first casualties that is killed on the steps of the Courthouse.

Lady Justice gets a finger in the eye by the "practice of law," rather than getting the law right.

Adam

[George H. Smith]

Some historical background about the distinction (mentioned above) between perfect and imperfect rights.

A version of this distinction is found in the massive book by Hugo Grotius, The Rights of War and Peace (1625). But it was more clearly formulated in Samuel Pufendorf's equally massive On the Law of Nature and Nations (1672) -- a treatise that John Locke praised as the best book on political philosophy ever written.

The modern English translation of Pufendorf's book runs nearly 1400 pages, so Pufendorf prepared a much shorter book -- an abstract, in effect -- that summarizes the essentials. Titled On the Duty of Man and Citizen (1673), this became a standard text in European universities for many decades, and it easily qualifies as one of the influential books on political philosophy ever written.

Many of Pufendorf's ideas -- including the distinction between perfect and imperfect rights -- were transmitted to colonial Americans via two writers on Natural Law, viz., J.J. Burlamaqui (The Principles of Natural and Politic Law) and Emer de Vattel (The Law of Nations). Burlamaqui and Vattel were commonly cited and recommended by American intellectuals (including Jefferson), along with Locke, Montesquieu, and other standard writers.

Here is how Pufendorf summarized the perfect/imperfect rights distinction in On the Duty of Man and Citizen (p. 69):

One must also take note that what is due on the basis of the duty of humanity alone, differs from what is due on an agreement or on a perfect promise, above all in the following point. It is indeed right to make requests on the basis of humanity and honorable to grant them, but I many not compel the other party to performance by force either on my own part or on the part of a superior [i.e., government], if he neglects to perform on his own accord; I may only complain of his inhumanity, or his boorishness or insensibility. But I may resort to compulsion when what is due by a perfect promise or agreement is not freely forthcoming, Hence we are said to have an imperfect right to the former, a perfect right to the latter, and similarly to be imperfectly obligated in the former case, perfectly obligated in the later.

Although this usage has become antiquated, its significance for libertarian thought can scarcely be overestimated. It became the foundation for the crucial distinction between vices and crimes.

Ghs

[Dennis Hardin]

I frankly don’t understand the controversy. If you begin with the premise that the moral foundation of individual rights is man’s nature as a rational being and the requirements for human survival and productivity--that the mind only functions under certain conditions (i.e., where force is eliminated from human interaction)—then you will naturally conclude that, on the same premise, the purpose of rights is to enforce the fundamental preconditions of human survival and productivity. Therefore, by extension, each human being has the right to enjoy the fruits of his own mental labor, the products of his own mind.

In other words, just as an author will not write great fiction with a gun held to his head, he is also unlikely to write great fiction unless he can exercise some control over what happens with his independent mental creation. If an author writes, he does so with the expectation that he can control what happens with his creation—i.e., that he will profit from his writing. Otherwise, most writing simply will not happen. Human productivity will be utterly stifled. (Please note that intellectual property specifically applies to the concrete physical form in which ideas are represented, not to the ideas themselves. And that would include translations into other languages.)

You only run into difficulty here when you take the ’non-initiation’ of physical force as your ethical starting point and then try to extend that to the realm of mental activity or the physical products of mental effort. If no physical force is being used to copy someone’s writings, then why is it wrong? Because the absence of physical force is not a moral/political fundamental, just as, in the case of fraud, Bernie Madoff cannot be exonerated because he was not using physical force to defraud his investors. On a mental level, he was verbally misrepresenting what he was doing with their money—flushing it down the toilet of his own self-aggrandizement --robbing them without a gun. Would anyone seriously argue that, because he did not use physical force, what Madoff did was perfectly legitimate?

In one case—fraud—mental activity is being used to obtain something from someone by making them believe they are trading value for value when, in fact, the glib, fast-talking crook has no value to offer. In the other case—the abrogation of IP—one person’s mental activity is being used by someone else without any offer of trade; i.e., the creator is given no opportunity to reap the benefit of his labor and offer it for trade. The rights of both the investor and the creator must be protected in a free, rational society.

[rhartford]

I think the concept “property” refers to a relational intermediary between a person’s action and the consequent beneficial effect on the person’s life. In addition, in order to be property and not just a personal value, that intermediary must be capable of voluntary transfer to another individual for benefit to that individual’s life. The transfer is subject to voluntary acceptance of a set of conditions to be adhered to by both parties.

Some intermediaries, for example food, can benefit a person’s life by supplying bodily physical nutrition. Other intermediaries, for example a novel, can benefit a person’s life by supplying “mental nutrition.”

That which is properly protected as property is the aspect of the intermediary – food or novel – that contributes to the beneficial effect on life. The political means to protect the property must be based on the nature of the property to be protected. Protection of the novel as a tool of “mental nutrition,” and a tool brought into existence by the writer, may be more effectively and efficiently achieved, not by contracts requiring non-disclosure, but by a copyright system that imposes coercive penalties on someone using the tool without the property owner’s voluntary consent. It seems to me that the aspect of the novel that makes it a tool of “mental nutrition” is the intellectual property to be protected.

George’s posts are often thought-provoking. The above are some of the thoughts he provoked.

[George H. Smith]

I frankly don’t understand the controversy. If you begin with the premise that the moral foundation of individual rights is man’s nature as a rational being and the requirements for human survival and productivity--that the mind only functions under certain conditions (i.e., where force is eliminated from human interaction)—then you will naturally conclude that, on the same premise, the purpose of rights is to enforce the fundamental preconditions of human survival and productivity. Therefore, by extension, each human being has the right to enjoy the fruits of his own mental labor, the products of his own mind.

In other words, just as an author will not write great fiction with a gun held to his head, he is also unlikely to write great fiction unless he can exercise some control over what happens with his independent mental creation. If an author writes, he does so with the expectation that he can control what happens with his creation—i.e., that he will profit from his writing. Otherwise, most writing simply will not happen. Human productivity will be utterly stifled. (Please note that intellectual property specifically applies to the concrete physical form in which ideas are represented, not to the ideas themselves. And that would include translations into other languages.)

You only run into difficulty here when you take the ’non-initiation’ of physical force as your ethical starting point and then try to extend that to the realm of mental activity or the physical products of mental effort. If no physical force is being used to copy someone’s writings, then why is it wrong? Because the absence of physical force is not a moral/political fundamental, just as, in the case of fraud, Bernie Madoff cannot be exonerated because he was not using physical force to defraud his investors. On a mental level, he was verbally misrepresenting what he was doing with their money—flushing it down the toilet of his own self-aggrandizement --robbing them without a gun. Would anyone seriously argue that, because he did not use physical force, what Madoff did was perfectly legitimate?

In one case—fraud—mental activity is being used to obtain something from someone by making them believe they are trading value for value when, in fact, the glib, fast-talking crook has no value to offer. In the other case—the abrogation of IP—one person’s mental activity is being used by someone else without any offer of trade; i.e., the creator is given no opportunity to reap the benefit of his labor and offer it for trade. The rights of both the investor and the creator must be protected in a free, rational society.

Five brief points:

First, I have never accepted the NIOF principle as a moral starting point, so please dismount that hobby horse.

Second, I agree that a person should be able to enjoy the fruits of his own intellectual labor. The issue here is whether the original creator of an idea should be able to restrict, with the threat of force, how other people use their ideas. Ideas do not exist in some kind of Platonic realm. They exist only in the minds of individual human beings. I cannot literally use or steal your ideas. I cannot extract them from your brain, in other words, as I might take a physical object from you. Nor can you transfer your ideas to me, as you might give me a pen or throw me a baseball. I must use my own reason to understand and use whatever you communicate to me, by whatever means, and the resulting ideas are my ideas at that point.

As I said before, if you want to control your ideas, then keep them to yourself. Once you sell or give them away, they are no longer your ideas, just as a car that you sell or give away is no longer your car. If you want to attach conditions before you sell your ideas, and insist that buyers agree to such conditions, then there is no problem -- but here we are talking about a contract, not IP per se.

Third, the argument that artists will not create without IP is historically false. Much of the great literature in western civilization, for example, was written before the era of copyright laws. Moreover, this argument is a utilitarian one, rather like the argument that people need food to survive and that poor people will not be able to eat without welfare, so they have a right to such welfare. The utilitarian road is one that no O'ist should ever take.

Fourth, I have already addressed your contention that IP pertains to "a concrete physical form," not to ideas per se. For one thing, a translation is not the same concrete physical form as the original.

Fifth, your analogy between fraud and IP is seriously flawed. Fraud can easily be explained by a title transfer theory of property. For example: If I purchase what I believe is a diamond ring for $1000, then I now have the title (i.e., the moral/legal claim of ownership) to a ring worth $1000. And if you give me a glass ring worth $10 instead, then you are withholding my $1000 ring. Fraud, as Rand indicated, is merely an indirect type of theft. This is not analogous to IP unless you can first justify property rights in IP.

Ghs

[samr]

I want to mention some problems with the notion of intellectual property. I will present these in the form of "notes to self," rather than in a systematic fashion. They cover only a few issues, albeit fundamental ones. The following is largely taken from an old computer file that I wrote around 25 years ago, though I have cleaned things up a bit. (My computer notes, in turn, were based on handwritten notes dated July 1982. I think I was planning to write an article on IP for "The Voluntaryist" but never got around to it.)

Benjamin Tucker, an opponent of IP, once said, If you want to keep an idea FOR yourself, i.e., if you want to claim exclusive control over it, then keep it TO yourself. Don't reveal it to anyone else. If you do communicate the idea to other people, then you have either sold your idea or given it away for free, so you can no longer claim exclusive control over it.

I would add the following to Tucker's insight. Ideas cannot be property in the same sense that physical objects are property. If I have a car, I can literally transfer the car to you, in which case I no longer have the car. Property rights are necessary with material objects because control by one person means that no one else can control it.

Ideas cannot be transferred in the same way. As Thomas Jefferson put it in his famous metaphor about ideas, if I use your candle to light my candle, this will not extinguish your candle or make it shine less brightly. You can still use YOUR flame however you wish, just as I can use MY flame however I wish. (Please, no obvious and knuckle-headed examples about arson.)

Jefferson's metaphor is misleading. Why? Because an idea (or concept) cannot be used unless it is first understood. I cannot put my head against your head and thereby assimilate your ideas. Nor will I understand what you say or write if I don't pay attention. Nor, if you communicate your ideas through speech or writing, will I automatically understand them. Intellectual LABOR is required on my part. I must use my reason to interpret the signs and symbols that you provide, and in doing so I invest my OWN intellectual labor in those ideas. At this point the ideas in question become my ideas as much as they are yours, and I may use my ideas in any manner that I like.

A major problem here is determining the referent of "property" in "intellectual property." What is the specific unit of this concept? Some defenders of IP claim that ownership is claimed not over an abstract idea or ideas but over the concrete manifestation of ideas in a particular form, e.g., as found in books.

Suppose I purchase a popular copyrighted novel. That I own this book in some sense will not be denied by IPers. Nevertheless, an IPer, however much he will concede that I own the physical book, will deny that I own the novel itself, i.e., the specific story and sequence of words that are used to express that story.

Let's take a look at this claim. Can someone own a story? I don't see how, but let's pass to the more specific issue of how a story is expressed in words. Does the author own the particular sequence of concrete words contained in his novel? And if so, is this ALL for which he is claiming ownership?

Let's assume this is true. So what happens if the novel is translated into German and other languages? In such cases the same story will be told with different words and different sequences of words. Does the author also own all such sequences, even though he never wrote those words and may not even understand them? IPers will generally say yes, the author own all translations of his novel.

If this is the case, it means that ownership is not merely claimed over a particular sequence of words written by the author. The ownership claim is much broader, and applies to any sequence of words that tells the same story. So it seems that the ultimate claim of ownership is over the story itself, after all, and this brings us to the key question: How can someone own a story? If I want to read the story to my child, must I first obtain the permission of its owner? Suppose I paraphrase the story without the owner's permission. Have I thereby violated his property rights in the story?

A lot more needs to be covered in regard to IP, but keep in mind the fundamental purpose of my questions and examples about IP -- in this case, a novel. We need to pinpoint the nature of the "property" over which ownership is claimed. If we cannot do this satisfactorily, if we cannot be precise about the nature of the "property" in question, then the case for IP will collapse before it ever gets off the ground.

Ghs

I think, I can provide a case, even though it would be hard to define it legally.

Suppose I would read your book, and then retell it to my kid. I would use my own language (provided I understood your book), so in some sense, my story would be my own creation.

If I read the book, and tell a similar story in another language, composing it by myself, it would also be ok.

On the other hand, if I were to take this book, omit a few chapters, and reprint it, it wouldn't be ok.

Why? I think that the main variable here is work. That, like you said, I labour in order to understand something, and labour again in order to produce something.

So, mental labour is the characteristic that can determine if there was theft, or not.

Even if it is hard to define it from a third-person point of view.

[Dglgmut]

Here's a great essay on the issue: http://www3.nccu.edu.tw/~adali/hettinger.pdf

Within that essay was this quote from Joan Robinson:

A patent is a device to prevent the diffusion of new methods before the

original investor has recovered profit adequate to induce the requisite

investment. The justification of the patent system is that by slowing

down the diffusion of technical progress it ensures that there will be

more progress to diffuse. . . . Since it is rooted in a contradiction, there

can be no such thing as an ideally beneficial patent system, and it is

bound to produce negative results in particular instances, impeding

progress unnecessarily even if its general effect is favorable on balance.

As far as piracy goes, I think it's up to the developer/artist to make sure they get there dues up front, and leave the option for charity open for future unpredictable profits.

Also, consider how artists used to be "groomed" or whatever... like kids with musical talent would be taken to excersize their ability in hopes of creating something stimulating for those rich enough to keep them at it. Investment could be incorporated into art the way it is in other industries, and same with technology.

If there were no intellectual property laws the audience for a product would become more responsible for ensuring the creation of the product.

[Dglgmut]

The issue of morality is only half of the problem with intellectual property... the other half is enforcement.

Piracy is one thing basically impossible to enforce without encroaching on other human rights. Plagiarism is also a tough one.

If a stand-up comic steals a joke from another comic... how do you serve justice? Where is the objectivity of law?

Perhaps the burden of justice is on the victim, in this case. Maybe the intangibles business is what needs to evolve, not the policies intended to protect them. Or maybe the audience needs the opportunity to assume responsibility for valuing what is good, rather than taking everything for face value.

Unenforceable laws only benefit those willing to break them.

Maybe this is outside the justifiable function of law, as the economy shouldn't be controlled by the government.

And patents? Really? If a competitor is capable of reverse-engineering a chemical formula and out producing the inventor...

I mean, where are these chance inventions coming from in a capitalist economy? Isn't it most likely that the minds capable of innovation would already be leading their industry?

Or perhaps putting production on hold in favour of innovation would become too big a risk... But maybe, like with art, an organic creation, made to serve a specific purpose regardless of profit (a musician doesn't primarily write music so he can eat, he chooses to sell his music as a means for his survival because any other means would take time out of his passion), would be of much more value than that created as a commodity to be traded rather than used, or shared.

As a side note: An artist can share his art for selfish reasons; as a tribute to the art, rather than the audience. As an effort to allow anyone worthy of appreciating the art a chance to appreciate it.

[syrakusos]

The real world has plenty of examples, granted that we choose them to bolster the arguments we want to make. The Wright Brothers held off demonstrating their aeroplane because they were waiting for patents. Meanwhile the International Federation for Aviation granted to Alberto Santos-Dumont its medal for the first heavier-than-air flight. The Wrights packed up their aeroplane and took it to an airshow at LeMans. We were hooted as "poseurs" ... until they flew. The crowd went wild. Here was a real aeroplane that could turn a circle! It was clear that Santos-Dumont only stood in a box kite on a ballistic trajectory, even though his dirigible balloons had been circling Paris for years. Then, it was back to America... And a long involved law suit with Glenn Curtiss over "wing warping." The Wright flyers turned by pulling down the trailing edge of the inward wing. Curtiss invented the aileron, the extension that makes a wing wider or tips up to resist airflow. It was not "warping" but the Wrights claimed it was. Only when the Wrights bought out Curtiss did the problem go away and airplanes all acquired ailerons and no longer "warped" their wings.

Twenty years ago, would-be computer monopolists attempted to claim that the "look and feel" of a program was an invention worthy of patent or copyright protection.

Fashion has few intellectual property rights and profits from fashions are three orders of magnitude greater than for any protected market. See Johanna Blakley's TED Lecture here.