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America's Counter-Revolution
The Constitution Revisited

From the back cover:

This book challenges the assumption that the Constitution was a landmark in the struggle for liberty. Instead, Sheldon Richman argues, it was the product of a counter-revolution, a setback for the radicalism represented by America’s break with the British empire. Drawing on careful, credible historical scholarship and contemporary political analysis, Richman suggests that this counter-revolution was the work of conservatives who sought a nation of “power, consequence, and grandeur.” America’s Counter-Revolution makes a persuasive case that the Constitution was a victory not for liberty but for the agendas and interests of a militaristic, aristocratic, privilege-seeking ruling class.

Tuesday, April 12, 2011

Question for Randian IP Advocates

The Randian case for intellectual "property rights" is that all value-productive action (which is necessary for life) proceeds from a creative idea, and therefore all property is ultimately intellectual property. Deprive a person of the exclusive right to his idea and you attack the very foundation of life.

That case prompts a thought experiment: Imagine a primitive tribe in which one member does painstaking research on which wild berries are good for human consumption and which are not. (The Randian case emphasizes that such knowledge is not automatic as it in the case of lower animals, but has to be discovered by intellectual effort.) He learns through his work that when he eats one particular berry he gets healthier and more energetic -- better in every way. He also discovers that other berries are best avoided. The rest of the tribe observes and takes notes.

Question: Under Randian IP law, would the others need the innovator's permission before they may consume the healthful berries? Or does the innovative have an exclusive right to the fruits of his effort. (Pun intended.)

If not, why not?


Islam Hussein said...

The answer seems to be "no". By Randian IP law, the onlookers had the creative idea of watching the berry-tasting member's experiments and they through an analytical process of deduction came to the conclusion that some berries are healthy and some aren't. It is also the berry-tasting member's "fault" not to make his IP secretive enough which would have entitled him to full IP rights. By conducting his experiment in the open for all others to observe the result was implicit consent to share his "IP" with others.

Stephan Kinsella said...

Wrong. Patent -- which Randians support -- has NOTHING TO DO with trade secret; in fact the whole idea of patent is to encourage disclosure of inventions that would otherwise be kept secret; to permit it to be publicized yet protected still.

Sheldon Richman said...

I don't think a Randian would say that if you make no effort to keep your idea secret, you are tacitly approving of its free use. After all, if I leave the keys in my car, am I tacitly approving of its free use? It is my fault if the car is taken?

Islam Hussein said...

It is a social expectation that no one should take your car if you leave the keys inside. But minus such expectation, ultimately you haven't cared enough for your car to keep it. If you had, you wouldn't have allowed yourself to keep keys in the car. Same with ideas. You can profit from your IP and still not disclose its details if you cared enough to invest in protecting the idea.

Stephan Kinsella said...

Islam, this is wrong. In most cases, the only way to profit from an invention, or artistic work like a book, is to sell it. When you do this, you almost always reveal the secret of the invention, or the content of the novel. The Randians are 100% opposed to requiring the inventor to keep it secret if he wants to protect the idea. they want him to be able to reveal it to the world and still profit from it and keep competitors from using the information he reveals; i..e to have his cake and eat it too.

As Wendy McElroy observes in a forthcoming article on Libertarian Papers:

"Victor Yarros, Tucker’s main opponent on copyright in the 19th Century movement argued along these lines. He claimed, “All Mr. Tucker has the right to demand is that these things shall not be brought to his own private house and placed before his eyes.” Tucker responded,
'Some man comes along and parades in the streets and we are told that, in consequence of this act on his part, we must either give up our liberty to walk the streets or else our liberty to ideas ... Not so fast my dear sir! ... Were you compelled to parade on the streets? And why do you ask us to protect you from the consequences?'
'“You want your ideas invention to yourself. ? Then keep them it to yourself.'"

N. Joseph Potts said...

The Randian side of this thread implies that patents are permissible/enforceable only where social expectations do not dictate otherwise.

OK, so it is a matter of public whim (or customary usage) whether a creator of ideas/knowledge may have a patent on his creation/discovery, and presumably for how long, and perhaps as to which similar processes might be derivative, and which not.

Patent by referendum, perhaps, or poll. Maybe juries of people drafted from the populace, as for murder trials.

All I'm sure of is that the arbitrary decrees of bureaucrats does NOT implement the proposed Randian standard.

Stephan Kinsella said...

A friend asks, "What if one guy invented the concept of asking others permission before using their ideas?"

Indeed. The entire notion of owning useful ideas or ideal objects of intellectual creations or "values" or however they want to word it leads to bizarre meta questions and unanswerable and/or human life destroying results.

For example what about the guy who invented the patent system?

And what about the founding fathers, who invented limited government? They can now tax us in the guise of patent royalties. (see my post "An Objectivist IP Argument for Taxation"

The Randians think you can "create" "values", and that you thus "own" these values. They are just confused. There are no such thing as "values" as some existing entities. There are goals or ends of action. Humans demonstrate that they value certain ends by their actions -- this is a Misesian notion, but it mirrors Rand's idea that value is something you act to gain/and or keep--demonstrated preference. But value is relational; an actor values some object or good or end and he demonstrates that he does by his actions. There is no value substance or quantity of value to own. We do not "create values." We create wealth--but this just means, we use our intellect, work, etc., to transform existing owned resources into more valuable arrangements. You own the transformed good, and thus can benefit from the use of it--you value it more; you have more wealth. But you don't have more property rights.

Rand actually recognized this; she just didn't see that this contradicted her crankish view of value-creation-and-ownership: see :

Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and “Rearranging” http://blog.mises.org/14045/locke-on-ip-mises-rothbard-and-rand-on-creation-production-and-rearranging/

Rand said: "The power to rearrange the combinations of natural elements is the only creative power man possesses. It is an enormous and glorious power—and it is the only meaning of the concept “creative.” “Creation” does not (and metaphysically cannot) mean the power to bring something into existence out of nothing. “Creation” means the power to bring into existence an arrangement (or combination or integration) of natural elements that had not existed before."

AGSCalabrese said...

I have no clever arguments. I would allow protection of publicly revealed IP ( patents, copyright, etc. ) for a maximum of 20 years as long as it was very non-obvious. That is, the IP required creative effort to come into being. If the IP was not being used and shared ; that is licenses sold, products developed etc...... the IP would be declared abandoned.

99gus gusNWdenver

Stephan Kinsella said...

Wendy's piece is now up at http://libertarianpapers.org/2011/12-mcelroy-contra-copyright-again/

JT said...

"Patents and Copyrights,” Capitalism: The Unknown Ideal, 130:

"It is important to note, in this connection, that a discovery cannot be patented, only an invention. A scientific or philosophical discovery, which identifies a law of nature, a principle or a fact of reality not previously known, cannot be the exclusive property of the discoverer because: (a) he did not create it, and (b) if he cares to make his discovery public, claiming it to be true, he cannot demand that men continue to pursue or practice falsehoods except by his permission. He can copyright the book in which he presents his discovery and he can demand that his authorship of the discovery be acknowledged, that no other man appropriate or plagiarize the credit for it—but he cannot copyright theoretical knowledge. Patents and copyrights pertain only to the practical application of knowledge, to the creation of a specific object which did not exist in nature—an object which, in the case of patents, may never have existed without its particular originator; and in the case of copyrights, would never have existed."

J. Murray said...

"A scientific or philosophical discovery, which identifies a law of nature, a principle or a fact of reality not previously known, cannot be the exclusive property of the discoverer"

Then nothing is patentable or copyrightable under this notion. Everything we do is merely a scientific discovery that identifies a law of nature.

Applying light through a filter to create a laser is a law of nature, thus no lasers may be patented. The entire BluRay Constortium cannot hold a patent because the entire system relies on natural laws of light.

Combusting a mixture of gasoline in a mist form and air in a cylander produces mechanical work. This is a natural law, therefore no automobile engine can be patented.

All medication is an application of the laws of chemistry and molecular physics, thus no medication can be patented.

You writing a story relies on the physical laws of biology and you're merely discovering a neuron pattern in your brain based, which are heavily influenced on observations of the physical world, thus copyright is not valid.

To fit by that definition, you'd have to demonstrate that you literally broke the laws of the universe to create whatever it is you created to even qualify for a patent or copyright, which is impossible because by you doing it, it means its within the laws of the universe.

Sheldon Richman said...

AGSCalabrese writes, "I would allow protection of publicly revealed IP (patents, copyright, etc.) for a maximum of 20 years as long as it was very non-obvious. That is, the IP required [for] creative effort to come into being."

On what grounds do you claim this? History overflows with stories of creative effort in the absence of patent and copyright. Today many things are not protected by IP, such a fashion design. A little empirical knowledge would change a lot of people's minds on this issue. Boldrin and Levine's book, Against Intellectual Monopoly, is a good place to start.

History is not an a priori discipline!

MarkZ said...

The line between invention and discovery is too blurry to be of much use. If I invent a new way to visualize cells in the human body, and I store this data on my computer as 1's and 0's, which of these things can I protect by IP law? The means by which I obtain the data? The data itself? Or the interpretation of the data in scientific journals? I think most IP advocates would universally agree that IP law should protect the means and should not protect the interpretation of the discovery (although, curiously, they'd probably support the journals' "right" to protect the scientific report from being reproduced, even by the author).

But the interesting question is: what of the 1's and 0's on the computer? This is, for all intents and purposes, scientific data -- i.e. discovery. But how is the data that I produce from my scientific machine different from data that I produce from my guitar and microphone?

I find it impossible to understand how Randians or anyone else can claim "ownership" over information. The only valid argument, in my view, is strictly a utilitarian one.

Anonymous said...

Mr. Richman,

you write "Today many things are not protected by IP, such a fashion design."
A dear friend of mine, and unfortunately an IP lawyer, has D+G as a client. I assure you the fashion industry absolutely claims IP protection.

Sheldon Richman said...

That would be news to Chuck Schumer and the fashion industry, which is pushing a bill in Congress to extend copyright to fashion. See this.

There are still things in the marketplace can be imitated without fear of copyright- or patent-infringement suit, though the number may be dwindling.

Anonymous said...

Mr. Richman,

that fashion/clothing companies invoke IP protection would not be news to clothing companies.
Levis claims to "own" some sort of stitching pattern. Adidas claims to "own" the 3 stripe design, etc.



Sheldon Richman said...

Anon, have you read Ed Lopez's article? Certain "artistic," non-utilitarian features can be covered by copyright. But the design of garments per se cannot be. Why do you think the industry is feverishly lobbying Congress? Have they nothing better to do than to get a redundant law passed?

Stephan Kinsella said...

Sheldon is right. There is no general IP protection for fashion design: it's not protected by copyright or patent. That is one reason some designers try to use trademark to get some protection--they embed their trademarked design into the article itself, so that a knockoff is a trademark violation.

Anonymous said...

Mr. Kinsella,

thanks for explaining how fashion can use trademark for protection.
To a lay person like myself it seems an arbitrary and fine line that a clothing design cannot technically be protected via IP, but a design within the clothing design can be protected by IP.

Stephan Kinsella said...

Anon--no problem. I know it is confusing to laymen--it is confusing even to non specialist attorneys. (and even, from what I've seen, to specialists)

The problem I have is when people who know almost nothing about modern IP speak in favor of it--this is very common among IP shills and blowhards.