ARS – “The Normative Foundation of Intellectual Property”

[Guyau]

Ayn Rand Society

APA Eastern Division

Marriott Marquis Hotel

New York

28 December 2009

11:15 a.m. – 1:15 p.m.

Topic: “The Normative Foundation of Intellectual Property: Two Perspectives”

Allan Gotthelf will chair the session, and he has announced the presentations as follows:

“Both speakers are professors at George Mason University School of Law. Both explore in their scholarship the theoretical foundations of real and intellectual property rights, focusing particularly on the analytical content of and normative justifications for such rights. Professor Mossoff is a member of ARS, and his theoretical work is built on an Objectivist philosophical foundation. Professor Claeys’ theoretical work draws on foundations informed by John Locke, William Blackstone, and antebellum American natural law/natural rights jurists.

“Prof. Claeys in his paper will take off from some main themes in Prof. Mossoff’s paper and then develop his own views on those themes.”

Adam Mossoff

Eric Claeys

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Nozick in Anarchy, State, and Utopia (1974)

“Not only does the day seem distant when all men of good will shall agree to libertarian principles; these principles have not been completely stated, nor is there now one unique set of principles agreed to by all libertarians. Consider for example, the issue of whether full-blooded copyright is legitimate. Some libertarians argue it isn’t legitimate, but claim that its effect can be obtained if authors and publishers include in the contract when they sell books a provision prohibiting its unauthorized printing, and then sue any book pirate for breach of contract; apparently they forget that some people sometimes lose books and others find them. Other libertarians disagree.* Similarly for patents.” (141)

“*For the first view see Rothbard, Man, Economy, and State, . . . (1971 [1962]) p. 654; for the second see, for example, Ayn Rand, ‘Patents and Copyrights’, in Capitalism: The Unknown Ideal, . . . (1966 [1964]) pp. 125–29.”

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Session of related interest:

Molianari Society

29 December 2009

11:15 a.m. – 1:15 p.m.

Topic: “Intellectual Property: Is It Legitimate?”

Speakers:

Bob Schaefer

“Response to Kinsella: A Praxeological Look at Intellectual Property Rights”

G. Nazan Bedirhanoglu

“History of the Reification of the Intellect”

Who?

“Gustave de Molinari, the nineteenth-century French free-market economist, was the first person in history to contemplate and advocate a free market for police protection” (Murray N. Rothbard, For a New Liberty, 1973, p. 224)

See further:

David M. Hart – Part I, Part II, Part III

Molinari Institute

Previously,

Against Intellectual Property

N. Stephan Kinsella (2001)

Journal of Libertarian Studies 15(2):1–53

Patents and Copyrights: Do the Benefits Exceed the Costs?

Julio H. Cole (2001)

Journal of Libertarian Studies 15(4):79-105

I regret that I was unable to find Murray Franck’s paper “Intellectual Property Rights: Are Intangibles True Property?” on the web. Help, anyone?

[Guyau]

The paper of Adam Mossoff is excellent. He is developing this work further; his title for it at this stage is “A Value-Based Theory of Intellectual Property.” He defends the thesis that intellectual property rights are a fundamental form of property. In making his case, he relies on, and presents with rich original illustrations, Ayn Rand’s theory of value. In this paper, Mossoff focuses on U.S. law of patents. His jurisprudence here is a smooth extension of Rand’s thought in her essay “Patents and Copyrights” (1964).

I will let you know if I hear of the finished paper being published. Adam Mossoff is the author of the following:

“Locke’s Labor Lost” University of Chicago Law School Roundtable (2002).

“What Is Property? Putting the Pieces Back Together” Arizona Law Review (2003).

“Who Cares What Thomas Jefferson Thought about Patents? Reevaluating the Patent ‘Privilege’ in Historic Context” Cornell Law Review (2007).

“Patents as Constitutional Private Property: The Historical Protection of Patents under the Takings Clause” Boston University Law Review (2007).

“Exclusion and Exclusive Use in Patent Law” Harvard Journal of Law and Technology (2009).

“A Stitch in Time: The Rise and Fall of the Sewing Machine Patent Thicket” Social Science Research Network (2009).

“The Use and Abuse of Intellectual Property at the Birth of the Administrative State” University of Pennsylvania Law Review (2009).

(More)

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The paper of Eric Claeys is also excellent. His, too, is a work in progress, the current title being “Intellectual Property and John Locke’s Theory of Labor.” His present Abstract:

“Recent hermeneutical scholarship on John Locke’s Two Treatises of Government [Second, §5] has reinterpreted Locke’s justification for property rights. In this ‘productive labor’ reinterpretation, labor is conceived as a consequentialist moral interest in the production of new goods, previously unavailable to the political community, but likely to enlarge the rationally useful advantage of that community.

“This paper uses the productive labor reinterpretation to reconsider contemporary debates in intellectual property scholarship about how Locke’s approach applies to intellectual works. Properly understood, Locke’s account of productive labor justifies property only in novel intellectual works. Presumptively, Locke’s account justifies only the limited property rights associated with trade secrets—but it can justify the stronger rights associated with patent or copyright if a given intellectual work is valuable enough. Locke’s account, however, also justifies imposing on copyrights and patents duration limits not imposed on property in land or chattels. In addition to explaining these claims, the paper shows how previous interpreters and critics have misunderstood the implications of ‘Lockean’ intellectual property theory.”

Eric Claeys is author of the following:

“The Private Society and the Liberal Public Good in John Locke’s Thought” * Social Philosophy and Policy (2008).

(More)

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In the modern vineyard of Greek wisdom, I heard there is a festschrift for Allan Gotthelf, forthcoming from Cambridge University Press. The title of the volume is Nature, Being, and Life. The editors are R. Bolton and J.G. Lennox. Contributions to this volume include:

The Unity of Definition in Metaphysics H.6 and Z.12.

Mary Louise Gill

Political Community and the Highest Good

John M. Cooper

I’ll keep an eye out and let you know when this new collection is released.

Edited December 31, 2009 by Stephen Boydstun

[Guyau]

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Developments concerning the Ayn Rand Society are continued here.

Edited February 15, 2011 by Stephen Boydstun