Part One
Patent Absurdity and Tyranny of the Mind (Part One)
The response to my commentary (from the Autonomist’s Notebook) on Intellectual Property which I posted on the SOLO forum was very interesting. I have selected the best responses and my replies to share, because this very long discussion covers every aspect of the questions of patents and copyrights.
Because this discussion is long, I have divided this article into three sections. This is the first section; these are links to the Part Two and Part Three.
[If you are not familiar with my stance on intellectual property, reading my Commentary on Intellectual Property will make what follows more meaningful.]
The first response was a very long one from MS. It is mostly attempt to show my view is a result of misunderstand patent and copyright law, and not understanding how something intangible can be property.
My response includes quotes from MS’s response in italics. Here is my response:
Thanks for the interesting and well reasoned comments.
…
An invention is a creation by an individual’s mind, a creation that is given physical form in a device or machine or a book, etc. But that is my point. If you create a machine, a book, a bottle of drugs, or a tube of lipstick, those are property because they physically exist. The design of the machine, the ideas in the book, the formula for the drug, and the process for producing lipstick are not physical, have no material existence, and cannot be property.
One is not allowed to patent a mere non-physical idea.
Since when? I know of many patents on methods of encryption, for example. There is no physical aspect of those patents at all, and many have no practical application, yet. (Which should answer another assertion you made about patents having to be implemented.)
To my statement about the origin of the copyright concept, (in part) “…Their argument was, they had spent all the time and effort writing the book, others were profiting from their time and effort without compensating them for it. In other words, their argument was the Marxist argument, the value of there work was determined by their effort,” you said:
This was not an argument about the value of the book, but rather about the ownership of its contents.
Who’s interested in owning what is of no value. The whole point of the argument concerned being able to prevent others from printing copies of the book so the original publishers (not the authors) would not have their sales reduced by a flooded market. Why else would they care?
The right to property is a corollary to the right to life – it is the necessary recognition that man’s life requires that he be allowed to keep the things he creates – all of the things he creates …
I do not know why this is so difficult. If you have an idea (we are talking about so-called intellectual property), one you develop because you need it to live your life, it does not matter a particle if one or a million other people have the same idea and use it, or how they got it, they cannot take your idea away from you or prevent you from using it. If all patents and copyrights were meant to do is ensure no one’s ideas could be taken away from them, they would be superfluous. No one can take anyone’s ideas away from them.
If all patent and copyrights were meant to do is ensure the product of no one’s effort were taken away from them, they are again superfluous. There are already laws against stealing.
But patents and copyrights are not mean to protect anyone’s ideas or property, their sole purpose is to prevent people from using their own ideas and their own property.
Atlas Shrugged does not belong to Ayn Rand simply because she was “the first one to write it.” It belongs to her because she created it.
Certainly all the original manuscripts belong to her (or her estate), but what exactly do you mean, “it belongs to her.“If I buy the book Atlas Shrugged, it belongs to me. It is my property. I own it, fair and square. If it is my property and my property rights are protected, I can do anything I want with that property. I can read it, burn it, or use it for toilet paper if I choose to.
I can also copy it. If I copy it, those copies are also my property. I created them using my own property and my own materials by my own effort. If I have property rights I may sell any property I own to anyone who is willing to pay for it, including the copies I made of Atlas Shrugged. The only thing that might stop me would be an abrogation of my rights by some immoral law, like copyright laws.
Since an orange does not qualify as intellectual property, atomic copying it is not a problem.
[The originals must be read to fully understand this comment.]
Metaphysically, once they exist, there is no difference between an orange and a CD. In terms of the nature of their existence, they are both metaphysical unalterable facts. “A man-made product did not have to exist, but once made it does exist. A man’s actions did not have to to be performed, but, once performed, they are facts of reality. [“The Metaphysical Versus the Man-Made,” Philosophy: Who Needs It, Page 27]
Edison did not merely “think of the light bulb first.” He spent thousands of man-hours in experimentation, identifying a material for the filament, determining the type of glass for the bulb, and designing a configuration that would work. It is preposterous to say that at the end of that process, Edison deserves no more right to the invention of the lightbulb than does the first man that subsequently lays eyes on it.
When I said, “Their argument was, they had spent all the time and effort writing the book, others were profiting from their time and effort without compensating them for it. In other words, their argument was the Marxist argument, the value of there work was determined by their effort,” you said, “This was not an argument about the value of the book …,” but that is the very argument you are now making. It is “preposterous to say … Edison deserves no more right to the invention of the lightbulb,” why? Because, “he spent thousands of man-hours in experimentation, identifying a material for the filament, determining the type of glass for the bulb, and designing a configuration that would work.“But what is the patent protection for? to make sure he doesn’t for get what he invented, or, to make sure he is able to make the amount of money he ought to because he put so much work into it.
To my argument: “The most absurd argument for intellectual property is the argument that anyone who reproduces any of those things that are collected under that pseudo-concept is “stealing.” If the producer of so-called intellectual property does an inventory before someone else makes their own copies and sells them (or gives them away) and takes another inventory after someone else makes their own copies and distributes them, they will discover that nothing is missing. The concept of theft is based on something being stolen, but if nothing is missing, just what is it the presumed violator of intellectual property rights stole?” You said:
The theft is in the form of unauthorized use. If you take an inventory of your automobiles on Monday and another on Friday, you will have the same number of automobiles. That does not mean it is okay for me to take one of your cars and use it without your permission on Wednesday.
Do I really need to tighten up my analogy to prove the disingenuousness of your comment. Just in case you do not really understand, let’s include the fact the owner of the so-called intellectual property also has surveillance cameras on his product during the entire period in question, and none of his product is touched or “used” by anyone.
An agreement need not be in signed and in writing to be binding.
But to be an agreement means both parties actually have to agree. That is not the case with anything purchased where the manufacturer say, “if you buy this it means you agree to … whatever.” Whenever I read that, I say, “says you, but I do not agree.”
… but can you name me a single, significant market with only one supplier …
Viagra, Cipro, and thousands of others.
…
All of my arguments can be reduced to this: Property consists of physical entities and substances. Anything that attempts to make anything else property dilutes the principle of property, and thereby, the nature of all rights.
The next response was from FH. The following is my reply:
Thanks for the nice comments. I think we are mostly in agreement.
You said: I am not so sure about using a manufacturing concept (reproduce), which implies physicality, in conjunction with the reproduction of an idea, which, you state: “…have no physical qualities.” If ideas have no physical qualities (I have no idea as to which sort of physical qualities ideas have, by the way) then just what is being reproduced? Is reproduction of a non-physical entity possible?
The confusion is my fault. The language in the paragraph you quoted is meant to reflect the language in the previous paragraph describing the nature of physical property, (for the sake of balanced construction). By, “reproduce,” I had in mind the fact that an idea I have can be learned by any number of other people, thus being “reproduced,” in the minds of every individual who learns it. Ideas only exist psychologically, that is in the consciousnesses of those who understand the ideas. An idea written down or expressed in drawings and formulas is not an idea, only so many marks on paper (or whatever medium it is recorded on). It is only when someone reads the written description or studies and understand the drawings or formulas that the recorded information becomes, in the strictest sense, and “idea.”
Now this surprised me, Although I do not agree with your “Ideas are not physical,” …
I would be interested in what sense you think ideas are physical? Ayn Rand certainly did not think so, and you already know I do not think so.
If it is clear as to who made the product, I see no problem in the replication and the distribution of the replicated, either.
Certainly! And you were right to point out that it would be fraud if one attempted to deceive the buyer about the actual source of the product.
The next response is from GF. Before I was able to respond, CR posted this long response. I include it, because it is well done and makes some good points I agree with.
… As an inventor, manufacturer, and published author this is subject of importance to me, so I’ll add my two cents.
Regi stated: “Property consists of physical existents which can be counted or measured. Property consist of physical goods made from physical substances or components.”
Astounded, Glenn demanded to know: “Why is this the correct definition of “property”? It’s not my definition, it’s not the dictionary’s definition, and it’s not Rand’s defintion. Where does this definition come from?”
Well, Regi gave you not so much a definition of property as a generic description of it, and it is on the mark. Property by its nature must be capable of possession – i.e., you must be able exclude others from your claim to call it property. Regi’s point is commonsensical: Only physical things are inherently capable of possession by exclusion. (Wealth is included in Regi’s description even after it has been translated into money, because its origin is physical and so it retains the quality of measurability.)
However, to possess something that is non-physical requires an artifice, such as a patent, which furnishes, through the force of government, a non-physical entity with the quality of excludability that it by nature lacks. It is only by the threat of force that a non-physical entity can be possessed to the exclusion of all others. Real estate can be fenced off, and personal property can be locked up. Because of their physical nature and nothing more, they can have only one owner at a time. But it is only the threat of civil suit or perhaps prosecution that prevents a patented idea from having more than one owner. (Yes, I understand that an idea must be proven with a working model to be eligible for a patent, but it isn’t the model a patent protects, but the concept of it.)
So a patent is a monopoly over an idea that the government creates and enforces where no such monopoly naturally exists. It is no coincidence that the origin of the modern patent is in the authority of monarchs to award a subject a monopoly over a commodity or a trade. The evolution of mercantilism into capitalism eliminated the use of the patent for the most obnoxious sorts of monopoly, but the patent is still going strong when it comes to the monopoly of an idea.
Thus, Regi’s description of property makes a fundamental distinction. That which is physical (or originated in physicality) can be property naturally. That which is non-physical can be property only through artificial creation by the government. So the question is: Should the government have the power to create artificial property?
Glenn then complains about reverse-engineering: “Without patent laws, this would be a perfectly legal and practical way to do business. All the parasites would have to do is sit back and wait for someone to expend the effort required to come up with, and develop, a new idea, and then they could duplicate it. The problem is, who’s going to do the hard work when the market allows the looters to flourish?”
Since when is reverse-engineering a picnic? Who is truly the looter? The manufacturer who wants the government to police its control over its designs and methods, or the manufacturer who protects its ideas by itself through trade secret? For a century anyone who has wanted to can try to reverse-engineer Coca-Cola (and many have), but they have all failed because the owners of Coke have jealously guarded its formula. However, the effort to copy Coke has provided the market with a wide variety of colas to satisfy every taste out there. Had Coke been protected by a patent, everyone would have known exactly what the formula was, and I must wonder if Coke and cola would be synonymous today.
A patent is mischief because what it truly gives a person a monopoly upon is a discovery – i.e., a discovery of applied science. Being the discoverer of an application of science may well merit our honor and respect, but not our acquiescence to a government-mandated privilege to make good on that discovery. Science progresses because we do not, for the most part, let the government obstruct the transmission of ideas and discovery. Would engineering also move forward with the speed of science if we didn’t bog it down with a patchwork of monopolies upon ideas and discoveries? Maybe, maybe not. One of the big disadvantages of a patent is that you must disclose everything about your idea. That gives a lot of people a big leg up when it comes to reverse-engineering variations on the idea that fall outside the protection of the patent. That’s one reason why trade secret is a much better way to go if you have a truly unique idea that you are capable of producing.
All I know is that the power of patent is a dubious proposition from all perspectives, which shouldn’t be surprising in light of the fact that it is a purely government creation. Yet, it remains a power of the government, which like all government authority is subject to abuse. We now have the “look and feel” of software being patented. We also have genes and molecules getting patent protection. How far is that from patented discoveries of pure science? Not much if at all. How long before favored interests get the government to abuse patents on their behalf as much as copyright has been in the interests of big media companies like Disney? How ludicrous is the idea that a person’s image can be copyright protected?
My point is that we should only accord government power as is absolutely necessary, because it will end up being abused. Therefore, we should limit what it can abuse. Patents certainly are not necessary to our well-being.
Copyright, however, is a different story. While I object to its current abuse by extending copyright laws to protect interests far beyond that of the originator, art is distinct from discovery. A work of art is created, not discovered. While any idea is subject to discovery by anyone, a work of art is produced only by its creator. I cannot quite put my finger upon the underlying principle, but even if patents are foolishness, there is an injustice in denying an artist the benefit of his work. After all, when I buy a book, I am not buying the paper it is printed on, but the author’s composition.
I’ll be interested in seeing if Regi thinks my distinction between creation and discovery is valid, and if so, why copyright laws are still unjust.
This series of discussions, I think, pretty well exhausts the principles of “intellectual property,” but for those who would like to explore the subject further, I would suggest the following links:
Anti-Copyright Essays and links on anti-intallectual property.
Infoshop.com A page critical of copyrights, trademarks, and intellectual property.
Intellectual Property Issues Large resource of links and information about inti-intellectual property.
Anti-Copyright Resources Inventions then cannot, in nature, be a subject of property. – Thomas Jefferson. [From the Molinari Institute]
—Reginald Firehammer (5/19/04)