IP, Locke, Labor-Mixing, Creation as a Source of Rights

[nskinsella]

Michael and I were starting an email conversation but I thought it might be a good idea to do it here.

I had written him, "No matter what your stance on IP, surely you must wince to read Rand write: “patents are the heart and core of property rights." I mean... COME ON!" (I blogged it here and added links to some articles of mine sourcing the Rand quote)

His reply is below, followed by mine:

Stephan,

 

Rand's view is a variation of the Communist view that a worker owns what he worked on for having had some kind of productive contact with it. I personally have a huge amount of holes to fill as regards property.

 

I remember once reading a newspaper story where an executive from a venture capital firm was interviewed (this was during the dot com boom). He said something to the effect of the following: "Good ideas are mostly worthless. There are plenty around. Now, the capacity to implement a good idea, that is priceless."

 

So, obviously, an inventor's work only becomes property in the real sense of the term, i.e., a commercially valuable property, where there is other work involved in transforming it into a product or value. Otherwise, it is a good idea and nothing more. In this sense alone, I already agree with you. I don't mean to demean the value of inventing; it is of the highest value in human life. But overvaluing it also leads to other problems.  

 

(And it leads to absurd things that actually happen, like when a major oil company, for example, buys the patent to alternative source of fuel, then puts it on the shelf to rot. That way nobody produces anything with that particular idea.)

 

This is a long topic and it is late, so I will not go into much depth. There are two elements I find with property that are rarely discussed. The first is that of government. How many people have lost their property when their country was invaded by another?

 

Theoretically, one could say that their property rights were violated, but that is only words and does them no good at all. For all practical purposes, they and their families lost their property rights to what they had for all time. Then the conquering people who settle will have children who will inherit the plunder, and they will also have children, and so on. What are the property rights of this offspring?

 

Sometimes a huge mess ensues if a conquering government in power does not enforce property rights ruthlessly. There are places like Ireland and Palestine where half-measures of appeasement have only resulted in terrorism from the losers in the invasion.

 

So I see property rights including a measure of force and social organization in order to maintain them in reality - not just in theory.  

 

Then there is the question of time. Think about ancient Rome. Are there any heirs from that time who still have their family property today? Maybe the Catholic Church... some ancient European families maybe...  

 

Is that enough for mankind? (Obviously, no, since it only concerns a very small few of the elite, thus it is not suited to be called a human right.) And how about before that, say from before Alexander the Great?

 

Thus, I see inheritance having a limited span. Property rights are subordinate to the civilization in which they are exercised. When that civilization ends, the property rights end for all time (regarding any specific property) for the people who held them (if they survive) and for their descendants.

 

I once read a book called Hanta Yo! by Ruth Beebe Hill. At the end, when the Indians had more contact with white men, they saw a black slave. They wanted the "black white-man" to take part in the circle of discussion, but the whites objected, saying that the slave was property. In trying to explain the concept, by equating a slave with a plot of land, the Indians had too much trouble with the concept of owning a small piece of land to even examine the idea of owning a human being. To them, the whole world was owned by everybody, and a person had to integrate himself to the environment (learn it and understand it enough to survive alone in the wilderness anywhere) in order to fully own it.

 

These musing (and others) are very real and fully practiced concepts of property in mankind's history. They kind of helped spoil my Randroid phase years ago.  

 

Also, I started reading a bit more on this back when we first started discussing on SoloHQ - reading Locke, to be specific. Locke derived man's rights from nature, but then he said God created nature. This creates a logical crack wide enough to drive a truck through and makes it so that nature is merely one system for deriving human rights - divine intervention being the other. Locke didn't state that, but it is implied from his logical chain (if God is greater than nature, having created it, then logically He can intervene at His pleasure).

 

Rand and Rothbard both dismissed this divine connection in the original formulations of natural rights as not being important. I believe that it is - and that ignoring it has caused a great deal of mischief.

 

That's enough for now. I still have a lot of thinking to do on this.

Wow. Wow. You really do think outside the box!

Let me reply to a FEW thigns now then off to the grindstone.

"Rand's view is a variation of the Communist view that a worker owns what he worked on for having had some kind of productive contact with it. I personally have a huge amount of holes to fill as regards property."

I like that first line--quoted it anonymously just now on a Mises blog entry (can put your name in if you don't mind).

"So, obviously, an inventor's work only becomes property in the real sense of the term, i.e., a commercially valuable property, where there is other work involved in transforming it into a product or value. Otherwise, it is a good idea and nothing more. In this sense alone, I already agree with you. I don't mean to demean the value of inventing; it is of the highest value in human life. But overvaluing it also leads to other problems. "

Sure! And I of course value innovation. I also value my child; but that does not mean I have a property right in him

"(And it leads to absurd things that actually happen, like when a major oil company, for example, buys the patent to alternative source of fuel, then puts it on the shelf to rot. That way nobody produces anything with that particular idea.)"

You know, I've heard conspiracy theories etc. like this for years--the problem is, patents are public. So you can't keep an idea secret by buying the patent; at best, you can buy it but everyone will know this. Seems like this would be easy fodder for news exposes--but I am unaware of any. Moreover the fefds have the right to bust any patent and grant compulsory licenses under it--and I'm sure they would do so if there were an egregious case, don't you think? So just curious, are you aware of any actual examples of this, or any reports on this..? Maybe I'm naive but the logic of the situation leads me to believe this is impossible. Unless it's subtle and done in a way that has a veneer of rationale behind it.

"Thus, I see inheritance having a limited span. Property rights are subordinate to the civilization in which they are exercised. When that civilization ends, the property rights end for all time (regarding any specific property) for the people who held them (if they survive) and for their descendants."

Very excellent points... some of it is not incompatible with things I've thought. This is the reason there is a statute of limitations; there has to be a time element. If A can show B bought A's stolen property, he can get it back (let B have property-insurance if he is worried about this); but can A's descendant 20 genertions down teh line do the same to B's descendant...? I doubt any system is workable that would do that.

I tend to think that affter a certain time, all the mess a long time ago has to be viewed as a big fog... and so we have to treat the land, maybe as a fiction, but as having been "unowned" at a certain poin inthe past.

I used to do oil & gas law, before I switched to patents. I would do title opinions of oil & gas properties--like you have done if you buy a house now, the title company does this. What they do is try to prove ownership. They trace it back from now all the way back to some time in the past we can treat as a safe baseline. Usually, in Texas, it's when Texas becamse a republicor something, I can't remember. Even in libertopia (whether it's anarchy or minarchy) it seems to me a practice similr to this would evolve--that if you trace title back a certain number of years, that's good enough--if no one has claimed it since then, they have in effect given up their claim; it is too stale.

Re Locke et al:

again, interesting thoughts. I can go into this in more detail later, but I have become gradually of the view that I am very skeptical of natural rights/law theorizing, for 2 reasons. First, I think human nature is far too diffuse to eke much concrete natural law rules out of it; only very broad generalities. Second, I believe the is-ought dichotomy is real; you cannot go from is to ought, from fact about things, to norms and ethics.I think Rand's trite comment that a thing's nature determines what it "ought" to do, is just that--trite. And her own ethical system beliess this as it is really hypothetical, no? in that it relies on the (a-moral) CHOICE to live. I think any real ethical system has to bridge teh is-ought gap by making a "leap of morality"--that is, it is a hypothetical type construct that relies on some people choosing to be moral. And this is explicitly built into the ethical theory that I have found most convincing--the "argumentation ethics" approach of Hans-Hermann Hoppe and a version of that, my own "estoppel" argument.

You might find of interest also Hoppe's very insightful analysis of the nature of property rights -- see my discussion of htis and the links I provide, in my defending Argumentation Ethics piece; also the posts linked here.

And I go into some of this in my various writings, e.g. my long IP piece Against Intellectual Property. it seems to me that Locke is indeed flawed but mainly because he had this non-rigorous view that you own things you mix your labor with BECAUSE you own your labor (which you own b/c you own? your body? which you own b/c God, the real owner, sort of loans it to you, or in usufruct?). to me, the Lockean homesteading rule is justified but not really for Locke's reasons ... the basic reason is that people who want to be civilized and find ways we can live in peace and avoid disputes over disputable things--i.e., scarce resources--will all be in ffavor of property rules that allocate title to these things to particular people, namely those with the best connection to the thing. And obviously possesing a thing that was previously unused and int he state of nature gives you a "better" connection to something than any latecomer. To me, this is the simple reason that the libertarian property ethic is justified.

I'm not sure if flaws in Locke's original justification harm *this* reworking of the Lockean homesteading rule. But maybe you are right--maybe it did infect Rothbard and Rand--Rothbard for example repeated the "you own your labor and therefore the unowned things you mix it with" line. Maybe RAnd did too--I can't recall. But even here--note that the idea of owning your labor (which is confused and false, in my view) sort of creeps in and permeates and distorts the modern version of Lockeanism: it leads to giving too much weight to labor: so it ledas you to the notion thaat anything you create ,you own--this was Rand's flaw; and it led to her view that you of course own intellectual creations. It leads to the idea that there are 3 ways to own things: you find them; you buy them; or you create them.

The problem is that the first two are sufficient for all cases; the last one is neither necessary nor sufficient. If I make a statute out of your marble, it is yours, not mine. Why? Because it was your marble. So creation is not sufficient. And if you make a statue out of your marble, it is yours, but NOT because you creaated it--because you already owned the marble! So here, "creation" as an independent source of property rights is not necessary.

So we have to cast out creation as a source of property rights-and that makes IP fly out the window. And I think one reason "creation" crept in was Locke's reliance on labor and god-usufruct things. Etc.

What you say?

[Michael Stuart Kelly]

Stephan,

Welcome to OL. It is an honor to have you here. I hope we make you think and you make us think too - a lot on both ends.

(For the record for those reading this, Stephan posted my e-mail with my consent - even encouragement. Back to Stephan...)

This discussion we started having is a huge subject, almost intimidating, so let me just comment on two points.

The first is my observation about Rand's concept of property. I want it to be clear that I am going from a dialectical premise put forth in Chris Sciabarra's book, Russian Radical, that Rand's ideas and methodology were influenced by her education in Russia. As many of her core ideas were answers to ones she grew up with but opposed, I believe her concept of property was similarly influenced.

The second is about your request concerning oil companies buying patents and leaving them on shelves. I am not in the oil or patent business (although I translated many patent applications) and I have never researched something like this in the United States Patent and Trademark Office, so I do not have any concrete examples of patents for alternative fuels, much less who owns them and/or bought them. However, I did not merely state this off the cuff. Here are my reasons.

In Brazil, a few decades ago, they started using alcohol as vehicle fuel along with gasoline. There was a time when about half the cars sold were alcohol cars (now it is bit less). All service stations had and have alcohol pumps and gasoline pumps. When I left about a year and a half ago, many stations also carried natural gas pumps, like the kind you use for gas kitchen stoves. Many vehicles run on that down there now, with the metal gas bottle and everything.

The advantages of alcohol over fossil fuel were tremendous. You grew sugar cane or some other crop, so alcohol would never run out. Also, alcohol did not create pollution. And it was vastly cheaper. What the oil company lobby did, however, was very stupid. As gas prices were regulated by the government, they simply had the government tax alcohol until it was about the same price in terms of kilometers. Physically, it was cheaper, but as you used more alcohol per kilometer than gasoline, it worked out to be about the same price.

Even on an equal relative price basis like this, Brazilians bought the cars and put up with the tweaking that any new technology needs in the first few years on the market.

This technology was not in a patent rotting on a shelf. There was a country of 180 million people using it, yet the idea did not spread to other countries. The press rarely mentioned it, so I presume they are not interested in questioning something that is working for the present (gasoline). If they don't talk about a large country in the backyard using an alternative fuel, why would they worry about any patent on a shelf?

The next reason I believe the patent shelving story is because I worked in the entertainment business and saw many things close up. I personally know of (and knew) several pop artists who signed on with recording companies and destroyed their careers because the companies sat on their contracts. The idea was that if an artist who appealed to the same audience as a star started becoming famous, that star's recording company would sign him/her on with an exclusivity clause, then refuse to produce the albums. These contracts were typically five year contracts. As Brazilian justice is slow, litigation was not practical. Not many artists can survive a 5 year vacation from broadcasting and only doing shows, unless they are content to sing for drunks in nightclubs.

I see no reason on earth for a major oil company to act any differently just because the money element is much, much larger in oil than in entertainment. On the contrary, I see this an inducement.

I would be interested to find out about any patent that was bought and shelved by big oil, however. This is a great story for an investigative journalist.

Michael

[nskinsella]

Yes, Michael--good point. I would not put it past them either. Copyrighted works however need not be public, so lots can go on behind the scenes, as you note. Patents are and have to be public; and this is my point--yes, you are right, it's a great opportunity for an investigative journalist. Even the assignments of patents (new owners) are usually on the PTO's website, publicly searchable. And this is kind of my point--given this reality, you would think the big oil companies would be reluctant to do it and get that spotlight on them; or someone would have uncovered it by now.

Anyway, more on this later--thanks for the welcome.