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Post 40

Tuesday, February 27, 2007 - 4:16pmSanction this postReply
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Michael,

You are confused on an issue. The USA government does not collect and distribute copyright monies for performance fees. You linked to two organizations that do, ASCAP and BMI, as if they were alternatives to the government. But they rest on government protection. Without copyright laws to back their agreements with users, these organizations would exist about the size of mom and pop firms, and composers, authors and publishers would rarely receive fees for performance use.

Incidentally, BMI does not stand for "British Music Industry" as you wrote. I have no idea where you got that from or why you wrote that. It means "Broadcast Music, Inc." It is an American firm. The performing rights organization for England is called PRS (Performing Rights Society). It is a nonprofit organization that accepts both individuals and legal entities as members and it holds a government monopoly for the country on performance fees for music.

In Brazil they tried the total free market approach for this and a situation sui generis in the copyright world (that I know of) was created. One performance rights organization was formed essentially to charge for samba songs during Carnaval. Another took on dance hall music for the year. Another was formed for bossa nova when that started; another for country music (música caipira). And so on. But no performance rights organization specializes exclusively in only one style of music, just like hardly any composer creates in only one style.

Ten performance rights organizations in all were formed over time and ALL OF THEM went around to radios, TV stations, nightclubs, restaurants, show-halls, etc., and tried to collect performance fees for the music used. Since a song is of short duration and nobody keeps records of what songs they use, nobody knew how to pay for what. The users had a simple solution after they started receiving too many visits: don't pay anybody. The confusions was so great that there was no way to legally identify any body of work within the realities of use.

At Fermata in Brazil, when I was A&R man, the publishing division had over 60,000 songs published. Each one of them had been recorded. And this was just one publisher. There are literally hundreds of thousands of songs broadcast and used in performance every day. No song comes with a license or contract that must be signed in advance. So how do you charge for performance use? Think about the paperwork involved if advance settlement were necessary for each musical work used by each radio station, TV station, nightclub, restaurant, show-hall, supermarket, shopping mall, etc. Brazil doesn't have enough trees to make the paper.

How Brazil resolved this was that it made a single organization (a nonprofit private organization), ECAD (Escritório Central de Arrecadação e Distribuição), and granted it a monopoly on collection and distribution of fees. However, in order to be a member of ECAD, you had to be one of the 10 performance rights organizations (namely, ABRAMUS, AMAR, SBACEM, SICAM, SOCINPRO, UBC, ABRAC, ANACIM, ASSIM and SADEMBRA). So ECAD started collecting the money from all users and, after deducting a fee, distributed it to the ten member societies, who, after deducting a fee, payed it to their members (composers, authors and publishers). That was the only way that situation could work down there. Even with 2 middlemen, composers started seeing some money—not much, but some.

Some people have been killed over the years over this situation since gangs do get formed when money coming in from lots of places with little or no supervision is involved. After ECAD was formed, fewer people were killed in rivalry. Nowadays, this hardly happens.

This is the problem with total anarchy: gang warfare.

What I described briefly and in an oversimplified manner is just regarding performance fees for music and does not even exhaust the types of use for music (neighboring rights, mechanicals, inclusion, etc., although ECAD does collect for neighboring rights). Then think about literature, patents and other types of intellectual property. Then think about foreign use, since you did the standard Objectivist UN bash about WIPO.

I see no way for intellectual property rights to exist without laws and treaties to protect them.

Michael

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Post 41

Tuesday, February 27, 2007 - 6:09pmSanction this postReply
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Oh for Pete's Sake, Mr. Marotta.  Talk about strawmen dressed up in rationalizations.

Nobody is talking about intellectual property rights being necessary because of some alleged defect in the market.  Laws for intellectual property are advocated for the same reason one promotes laws to prevent theft of my car and my other personal property--it is legal protection of one's property rights.  One does not advocate laws preventing theft of their car, for instance, because of some alleged "market failure".  The free market is predicated upon legal protection for individual rights, including the right to property. Hellllllooooooooo.

I find it amusing that you promote yourself as a "pure" capitalist, yet you are sanctioning the wholesale expropriation of artistic and scientific innovation/creation.  Now THAT is a premise you share with communists--i.e. that the creators/producers are not entitled to that which they produce.  You want to see a "market failure", just keep advocating such things--you'll see one hell of a market collapse.

Furthermore, to say that one has a "monopoly" on intellectual property is the same as saying one has a "monopoly" on their house or their car.  If you mean in the sense that one one has exclusive control of their property, it is true.  Unless, of course, you think others should have control of your house and your car as well, just as you are sanctioning letting others have control of one's intellectual property.  Is this what you are advocating?

If I understand Aaron's argument correctly, his beef is that "government force" in regards to intellectual property denies "exclusivity".  So on one hand, you complain about intellectual property being a "monopoly" (i.e. exclusive to the owner), and he complains that "government force" denies it.  So which is it? You guys can't seem to decide whether up is up or down is up.

Let's be clear on precisely what you are advocating.  I am going to ask a few simple questions and I would appreciate a direct answer.  Does Ayn Rand own John Galt, Dagny Taggart, and the rest of the story contained within Atlas Shrugged?  Does somebody who buys her book have the "right" to go ahead and make copies and distribute them, create a movie of her work, etc.--without her consent?


Post 42

Tuesday, February 27, 2007 - 6:26pmSanction this postReply
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On a related note, an article in COMPUTER MUSIC magazine (UK) reports that sampling restrictions may be removed. (Sorry, couldn't find any online links.)

"When the Gowers Review of Intellectual Property was published in December of last year, most of the media coverage focused on its recommendation that the copyright of recorded material should not be extended from 50 to 95 years..." and "the report also recommended that the copyright laws 'be amended to allow for an exception for creative, transformative or derivative works.'"

Apparently this has to be "approved at the EU level before it could become law..." but the magazine speculates on the implications: "In practical term, this exemption would allow artists to freely sample existing sound recordings for the purpose of creating a new work with a new purpose or meaning. However, such activity would only be allowed where the 'transformative' use did not compromise the original creator or offend their artistic integrity."

One one hand, this sounds like it would take away power of the artist to approve or disapprove of how their music is sampled, since the danger of interpretation is so subjective; who's to say what the compromise is, or one could say that they don't understand why the original composer is offended? (From each according to his ability....). The argument is that a sample creates "renewed interest in the original work from a new generation of listeners." But what if an artist, like the fictional example of Rand's Richard Halley, objects to his work being "cut up" and destroyed of its original integrity? What if financial composition is not the composer's concern, but the understanding of the piece? What if he doesn't want that kind of exposure? Etc. Food for thought.



Post 43

Tuesday, February 27, 2007 - 8:45pmSanction this postReply
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Mr. Moeller,

That was an excellent post!  I love it when someone cuts right to the heart of the matter.

--- It makes what follows completely unnecessary, but I'll type it anyway----

Some anarchists holds that if an alleged property right requires a state to enforce it then it must not be a right.  Hence the willingness to throw out intellectual property rights since they are harder to protect.

The concepts of rival versus non-rival goods and the concept of excludability are economic measurements and didn't arise from ethics.  But it looks like they are being used to turn things around.  Use the concepts to determine that the state would be required to protect good x, therefore good x must not have property rights (ethical/legal).  Therefore the concept of anarchy is 'safe' - pure rationalization.


Post 44

Wednesday, February 28, 2007 - 2:56amSanction this postReply
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Steve, re post 38.

Do you really think that putting one group of people in charge and calling them a government will protect individual rights?

There must be only one set of rules.  Just as there is but one set of individual rights.

Ok, but that has nothing to do with government. Government is one group of people enforcing those rules.


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Post 45

Wednesday, February 28, 2007 - 8:01amSanction this postReply
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'If I understand Aaron's argument correctly, his beef is that "government force" in regards to intellectual property denies "exclusivity".'

You do not understand correctly.

'The concepts of rival versus non-rival goods and the concept of excludability are economic measurements and didn't arise from ethics.'

It's true they didn't arise from ethics; they are even more fundamental, a recognition of reality.

Property is exclusive (rival), in a real, metaphysical sense. An owner of land, a car, a yo-yo, even some non-tangibles (e.g. broadcasting in a certain geographical area at a certain frequency) can tell if someone else has encroached upon it, and someone else having that property necessarily denies it to the owner. Either the owner or an aggressor has a 'monopoly' in fact over it.

What is referred to as intellectual property is truly patterns - patterns of words, notes, arrangement of parts, etc. in some embodiment of real property. Patterns themselves are non-rival. An owner of a given embodiment of a pattern in his tangible property does not lose it if someone else also has an embodiment of the same pattern in his property. He likely cannot even know whether someone else has. Patterns simply do not have this key characteristic of property - nothing in the nature of reality makes anyone have a monopoly over them. Anyone who doesn't realize how much this difference matters could consider how utterly different the world would be if real property was instead non-rival.

Government enforcement of real property rights involves a recognition of reality that property is exclusive. However, government enforcement of bans on copying patterns attempt to counter the reality that patterns are not exclusive, attempting to instead act as if they are.

Strawman attacks on anarchism are irrelevant, and I've seen enough repeating of argument-from-scary-consequences. I am not an anarchist, I find attractive some of the arguments concerning innovation, and I tend to wish patterns were in reality rival instead of non-rival. However, wishing isn't enough, and the arguments being made have been ultimately utilitarian rather than having philosophical basis. What I'd like to see is an argument from reality on up as to how and why something lacking exclusivity should still be treated as property. Rand herself didn't do this, and the closest attempt I've seen at it was an article from Greg Perkins on Noodlefood. I'd much appreciate anyone actually tackling that question.


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Post 46

Wednesday, February 28, 2007 - 9:09amSanction this postReply
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Aaron,

I probably could go all the way down and agree with you that patterns are not exclusive and argue that the patterns plus the physical support (i.e., how the pattern changes the rival property) is exclusive, but this would take a longer time than I have here.

There is one thing I have noticed about this rival/non-rival dichotomy in defining property. It has a strong similarity to the mind/body dichotomy. I am pretty sure that we can agree that there is an enormous difference between a cadaver and the same body run by patterns of life and consciousness. Yet the only material something is the lump of meat.

I will make you an offer to illustrate this point with property. If you see no real reason for intellectual property to exist because it is not tangible, I will trade you equivalent lumps of plastic for your CD collection. Or better yet, should your CD collection ever be stolen, under this standard you would be properly compensated with equivalent lumps of blank plastic since the music was only "patterns." No real property was stolen other than the plastic, so the plastic is what should be replaced.

Correct? Would that satisfy you?

Or can we agree that it is the non-tangible pattern that turns those lumps of plastic of little value into much more valuable real property? If you agree that this is the case, what is the source of the wealth?

I submit that the "non-tangible pattern" is a fundamental component of property, i.e., the value embedded in material things (or real assets) by the intellect using man's life as the standard, and it is just as fundamental to the concept of property as the possession of a "rival" lump of something or a piece of ground is. How real property is turned into wealth is the whole issue behind intellectual property.

Without a non-tangible pattern, such real property would not even exist in that form. It would only exist in the manner it is found in nature without man's input. This goes beyond possession. This goes straight to the existence of the property itself. It is impossible to possess something that does not exist. And it is impossible to copy it.

On thing I really object to in the rival/non-rival dichotomy is in using the word "real" to mean only the material. The non-tangible patterns are just as real as lumps of stuff are. Just as the mind is real, and just as the body is real.

Michael

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Post 47

Wednesday, February 28, 2007 - 10:34amSanction this postReply
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Instead of merely asserting, at least Aaron gave an argument this time, which makes the lame sophistry plainly evident.

Atlas Shrugged is merely a "pattern" of words--a fact of reality that makes it non-exclusive.  What he fails to realize is that such a pattern does not exist as such--like a tree or a pond--it must be created.  I would like him to tell me exactly where in reality, absent Rand's creation, the "pattern" of words that makes up Atlas Shrugged exists?

What he is conveniently dispensing with is the role of man's mind in production.  He fails to recognize the difference between the metaphysical and the man-made.  He fails to recognize that these "patterns" do not merely exist in nature, but are the creative products of man's mind and thus his property once he creates them.  Will he answer my questions regarding Rand's rights to Atlas Shrugged that I posed to Mr. Marotta?  Or will he denigrate Rand's achievement as mere "patterns" of words that could be created by any comer and thus they have just as much "right" to it?

The further anarcho-libertarian argument goes that since another could have created say, the same invention, the original inventor cannot claim exclusivity over it.  As Rand stated, this fails to distinguish the actual from the potential.  Because one could have, does not change the fact that he didn't.  Imagine two whalers competing for the same whale, because one gets there first and kills it, it becomes his property.  It would be absurd for the second whaler to say, well, I could have killed it too; therefore, I have just as much right to it as you do.  Imagine the parasitism that this would encourage and that's what these creatures are endorsing.

Ironically, it is the anarcho-libertarian who is introducing force into the marketplace by allowing for the outright expropriation of what another creates/produces--all the while completely evading the role of man's mind in production.  Rand sums it up best in VOS ("Patents and Copyrights", pg 133):
...the collectivists seem to realize that patents are the heart and core of property rights, and that once they are destroyed, the destruction of all other rights will follow automatically, as a brief postscript....Those who observe the spectacle of the progressive collapse of patents--the spectacle of mediocrity scrambling to cash-in on the achievements of genius--who understand its implications, will understand why in the closing paragraphs of Chapter VII, Part II, of Atlas shrugged, one of the guiltiest men is the passenger who said: "Why should Rearden be the only one permitted to manufacture Rearden Metal?"

Yet, this is what Aaron apparently thinks there is no philosophical justification for, just merely "utilitarianism".  A profound confession indeed.


Post 48

Wednesday, February 28, 2007 - 10:43amSanction this postReply
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Jonathon,

You asked,
"Do you really think that putting one group of people in charge and calling them a government will protect individual rights?"
I think it is the right direction to go and the only direction I've ever heard of that makes sense.

You said the logical requirement that there be only one set of rules has nothing to do with government.  Government is the mechanism we are using to create and maintain those rules.  You can't have competing agencies that create rules without having multiple sets of rules. 

Do you have an alternative that supports the single set of rules?


Post 49

Wednesday, February 28, 2007 - 11:10amSanction this postReply
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It's good to see the anarchists are in the minority now on this forum and getting a good intellectual thrashing. I was starting to wonder about RoR.

Good posts Michael Moeller, MSK, Steve Wolfer and Robert Bidinotto.

To say too that we have one group as the government is a misnomer. Our government (the US) is not static and it is not one group, individuals within that government come and go and most have term limits, it is seperated into competing powers to make sure not one branch of government has ultimate control over the other. Any individual can choose to enter government. Anyone has the right to free speech and government redress to have laws changed. There is not one group but multiple groups in government that are tasked with the duty of protecting individual rights. No one individual or one group in government is held accountable to just himself so it is fallacious to say only one group of people is in charge of it. We are all in charge of it.

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Post 50

Wednesday, February 28, 2007 - 12:34pmSanction this postReply
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Aaron,

 

You said,

“Strawman attacks on anarchism are irrelevant…”

Addressing anarchism was not a strawman argument for two reasons. 

1)  The thread already had anarchist arguments going on when you joined in, and

2) The argument you made is often used by anarchists.

 

But, if my post implied you were an anarchist, then I should have worded it differently.

 

I appreciate the clarity and fullness of your reply in post #45.  I believe that the two Michaels have answered the 'reality' issue here – that a pattern is the product of a mind.  An automobile, or golf-ball, or lead pencil are all patterns in the same way initially – a design out of which the material lumps arise.

 

I hope no further argument is needed on the ethical question.  I’m assuming that you resonate as I do when imagining someone claiming they have as much right to the pattern of words in Atlas Shrugged as Rand.  If that person is wrong, then there is something wrong in this formulation of rival/non-rival/exclusivity.

 

I think it would be of benefit to discuss how the concepts of rival/non-rival/exclusivity are being used and work out the fallacies involved.  (Unless you remain unconvinced on the questions of “are non-tangible patterns not real?” and “Is Atlas Shrugged just a pattern that is non-exclusive?”)

 

I think one fallacy is in a redefinition of property using the word ‘exclusive’ which is being used ambiguously. 

 

But before getting into that ambiguity or anytihng else on rival/non-rival it would seem best to list the premises I'm working from in this area and invite some feedback on them.

  • Property, as I understand it, is a relationship between people in respect to a defined piece of real estate or a man-made value (which includes natural values that have been improved).
  • It is, therefore, not a physical entity, nor even an attribute of a physical entity – it cannot exist outside of that relationship to people. 
  • Property is the term used to refer to a bundle of rights.
  • Property is, therefore, is always in-tangible – because it must start with an idea which is in-tangible (real estate being an exception), for a good that is in relation to other people (relationships being intangible) and property is made of rights (which are in-tangible). 
  • But property never comes into existence until the creation takes form outside of the creator’s mind.  (This being the separation between actual and potential)
  • Properties, once in existence, become values themselves and can be lawfully transferred.
 I am very far from being expert in economics, law or ethics and invite some feedback on these basics.

 

(Edited by Steve Wolfer on 2/28, 12:44pm)


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Post 51

Wednesday, February 28, 2007 - 3:23pmSanction this postReply
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Michael M-
I know you're in principle capable or intelligent thought such when dealing with legal issues in much earlier posts. If you ever want to return to engaging in discussion of ideas instead of arrogant mental masturbation, then take a deep breath and try again, without the insults, and actually talking to me.

MSK-
You're sincere and have a good point. Sanctioned.

I am not satisfied with the 'some libertarians' idea of not even trying to look for some principles to try to treat patterns as property. I am trying to stir the pot since I'm also definitely not satisfied with the all-too-common advocacy of IP that stops at defending the status quo with 'nobody would invent or sing again!' doomsday hypotheticals without considering matters such as what property means - and I want to try to find other ideas and possible answers since it's not a trivial problem.

I did use the term 'real property' in a somewhat broader sense than strictly tangible. E.g. broadcasting in a precisely enough defined frequency and area would have exclusivity (due to radio interference) and hence be worthy of talking about as property. That's actually a pretty easy to grasp example for the relevance of exclusivity - if there was no radio interference, would anyone ever have even worried about treating broadcast spectra as property?

Using government to ban copying patterns necessitates using force against people for doing something entirely on and with their own real property. I see any argument for government force (any, not just copyrights/patents) as having to address two factors:
1) what vital factor of man's survival does this application of force aim to achieve?
2) how is this application of force not itself aggression?
And the burden of proof has to be pretty damn high. Protecting individual life, liberty and (real) property pass these. Many welfare statist ideas seek to achieve 1) (for some people) while ignoring 2) (and many improper government programs can obviously fail at both).

The arguments presented concerning 'IP' usually attempt to address 1) via some negative portrayal of a hypothetical 'what if?' of what would happen if government force were not involved. And as I said, I am sympathetic to these consequentialist arguments, at least insofar as they are plausible - e.g. drastic changes in some industries, effects on less investment in innovation, heavier reliance on technology, trade secrets and contract law.

Most people skip by 2), so I like the gist of your argument summed up by:

"Without a non-tangible pattern, such real property would not even exist in that form. It would only exist in the manner it is found in nature without man's input. This goes beyond possession. This goes straight to the existence of the property itself. It is impossible to possess something that does not exist. And it is impossible to copy it."

Essentially that argument claims that it's not aggression against someone to prevent them from replicating a pattern in their own property if they could never realistically have done it anyway. I find that concept interesting and elegant. It has a probabilistic element to it (could I have written those 10 words or whistled those 5 notes on my own?), but beyond some reasonable number of notes/words/etc. it seems to me that it can be a powerful argument for copyrights. *The likelihood of someone else writing exactly the words of Atlas Shrugged without having encountered some other embodiment of these is so vanishingly small that preventing them from doing so after encountering it takes away nothing they could have done had they never encountered that embodiment at all.*

The argument doesn't hold up in the same fashion for patents, where developments are often very incremental, independent invention is a reality (and Rand's cavalier dismissal of it in 'Patents and Copyrights' was one of her few truly ignorant moments), and any argument of 'this pattern wouldn't have existed without this particular person x creating it' is almost certainly false within months to years. Indeed I consider patents a far more problematic case than copyrights. Most advocates of 'intellectual property' treat them essentially as a package deal, while it would probably make sense to consider them separately.

And while that argument does sound good for copyrights, it seems that if it holds, then it would apply in perpetuity. I know the status quo and even Rand supported arbitrary time limits. But if the principle is truly that a pattern would not be independently produced by someone else, then that would still hold at 101 years or author's death+51 years or whatever arbitrary line in the sand there is. Basically, if your argument applies, I see copyright time limits as only a utilitarian gesture in the other direction.

I agree with some of the consequentialist arguments about innovation, and I do like your argument above. Is that enough? It still seems like there are gaps, unfinished pieces, but that could be a pretty good basis for building to a principled treatment of copyrights of works over a certain length. Do you see the same about patents, or consider them separately? Also, what do you think about your argument with respect to time limits?

Steve-
I just refreshed and saw your latest post. I don't have time to digest and respond now, but you're civil and thought-provoking and really thinking about the concept of property. Sanctioned.


Post 52

Wednesday, February 28, 2007 - 4:53pmSanction this postReply
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You said the logical requirement that there be only one set of rules has nothing to do with government.  Government is the mechanism we are using to create and maintain those rules.  You can't have competing agencies that create rules without having multiple sets of rules. 

Do you have an alternative that supports the single set of rules?
Steve,

First off, I'm not interested in discussing IP, but since you asked a question, I will answer it.

Secondly, my interest in anarchism arises from my opposition to taxation. Although I've seen some try to argue that a government can be voluntarily financed, I have a hard time believing that's feasible. Frankly, I was surprised to find how many people on this forum actually support taxation. Now...

Where did I say anything about competing agencies that create rules? I am referring to the enforcement of those rules. Anyone can create a rule. The power is in the ability to enforce it. I would envision multiple agencies enforcing one set of "common" laws.

I was going to write more, but I really don't want to hijack the thread. 


Post 53

Wednesday, February 28, 2007 - 9:33pmSanction this postReply
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Jonathan,

You mention a set of "common" laws that competing agencies enforce.  Two questions:
1) Where do they come from?  
2) How do they get to be, and to stay, common?

It is in the area of a common set of rules that I cannot envision anarchy or the market place working.  And I can't envision anything less than violent chaos, eventually leading to complete collapse, without a minimal set of common rules.

I think voluntary taxes would be fairly easy with a small enough government.

I always like the scheme of a civil-suit insurance on contracts.  If you want to be able to sue someone over a contract you have to have taken out that insurance - say a fraction of a percent of the contracts value.  And subscribing to police and fire.  Private roads.  etc.

But to get back on thread, if you have anarchy you can not have intellectual property rights.  Anybody could claim the right to publish and distribute Atlas Shrugged.  Right?


Post 54

Thursday, March 1, 2007 - 2:44amSanction this postReply
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Steve, rather than hijack this thread, I will start another to answer your question.

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Post 55

Thursday, March 1, 2007 - 12:10pmSanction this postReply
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Aaron,

Well that's a convenient way for you to evade answering arguments.

Instead of answering the arguments and questions directly, he creates a ridiculous strawman--i.e. that the argument for intellectual property rights amounts to nothing more than doomsday "What If" scenarios.  He treats them as if they are no better than environmentalist doomsday predictions about the future.  Reading the arguments on the thread, is this a reasonable and fair assessment of the other side of the debate?  Totally disingenuous.

Never mind the fact that these are not "what ifs".  As anybody familiar the cases would know that the harm is real and demonstrable--to the millions lost by music studios in Rokster and Grokster, to authors who gain fame and profit by directly copying another author's works, to those appropriate trade secrets in corporate espionage, to those who gain market share by directly copying the trade dress of a famous brand, and on and on in the countless ways people infringe on intellectual property.  Under the current law, these people who get their day in court--to have injunctions placed on infringing products, to obtain damages for infringing products, to have seizure issues ordered for counterfeited products, and other forms of redress.  Instead, Aaron and the anarchos would have these legal protections wiped away all because these harms are apparently not real to Aaron, they are merely "what ifs".  So if we take away these legal protections and ability to redress infringements, these harms would somehow disappear?  Especially in the face of no laws protecting these rights?

Nor did he address the real argument of man's mind in the role of production and the entitlement to the products of efforts.  Instead, he reduces it to "patterns", which he leaves undefined. So the pharmaceutical company who spends years and years and millions developing an innovative new drug does not have legal right to it because it embodies certain "patterns" in some other property somewhere--whatever that means.

The correct way of looking at it would be to say that it embodies laws of nature/ideas, which of course all property does.  What else could they possibly use?  The difference is that laws of nature simply exist and are not created, the practical implementation, in contrast, has to be created.  These forms are given existence by the mind of the creator and intellectual property rights recognize his creation.

Then he seems to begrudgingly admit that there seems to be some intellectual property rights to copyright because the low probability of creating the exact pattern of words in an Atlas Shrugged.  Again, not recognizing the role of the mind in the creation, he rests his "philosophical" argument on probabilities

This "interesting and elegant" argument manages to combine both the fallacy of question begging and the fallacy of the stolen concept. If the probability of doing x is wrong (in this case, copying the patterns), it still begs the question of why doing x is wrong.  Furthermore, this probability argument assumes that Rand is the owner of the words in Atlas Shrugged.  If Rand did not own the words in Atlas Shrugged, then why would it matter whether or not there was a high probability of "realisitically" producing that "pattern" independently?  Whose rights are being violated?  He is assuming the existence of such property rights with his probabilities argument while simultaneously trying to deny them with his "patterns" argument.

On to patents.  Not only does he ignore that not every "incremental invention" is not patentable, particularly not "incremental inventions" by the standards of patent law, he claims that Rand's "cavalier dismissal" of independent invention is "truly one of her ignorant moments".  Never mind the fact that she DID deal with this argument in the actual vs. potential argument that I presented above.  He does not argue against this and instead presents the strawman of implying that every "incremental invention" is patentable, and not deserving of protection because tomorrow somebody else might make the same "incremental invention".  Talk about "cavalier dismissals".

Aaron does not seem to realize that this is grounded on well-established principles of property and law, and that Rand further elucidates them in terms of intellectual property.  At least as early as John Locke in his Second Treatise of Government, he recognized that once man takes from the "state of nature" and coverts it to productive use by his own effort, it becomes his.  In the earliest days of the US courts, they not only recognized that it was this productive conversion from nature, but in commercial competition, the person who owned the property was first in actual possession.  Hence the whaler example I gave above, which was left unanswered.

Rand keeps in line with this when she defends those who are first to actually produce the given invention. Again, Aaron competely ignores this and calls it a "truly ignorant moment". Ok, if he says so then that convinces me. 

Rand takes it to an new level illustrating that work is not just general "labor", but the mix of both thought and physical action.  And patents and copyright are designed to protect the mental aspect to this creation.  Think about it, what is the physical labor involved in my pharmaceutical drug creation example above?  Any comer could easily ascertain the chemical formula and produce it; thus negating the mental effort in researching and developing the drug to meet a given application.  As Rand stated: "By forbidding an unauthorized reproduction of the object, the law declares, in effect, that the physical labor of copying is not the source of the object's value, that that value is created by the originator of the idea and may not be used without his consent; thus the law establishes the property right of a mind to that which it brought into existence"  (VOS, pg 130).

Instead, Aaron wants to replace it with some mush about "patterns" in property that make them "non-rival" and "non-exclusive".  Not realizing that this was the product of one's mental effort, he would therefore allow anybody who wants to feed off the productive mental efforts of the pharmaceutical company to do so.  Unreal.

For the record, patents and copyrights and trademarks are treated differently by law--they are NOT a "packaged-deal" (as Aaron stated), but they do fall under the broader concept of 'intellectual property'.  One can acknowledge they have differences while also seeing they do have essential similarities--hence the need for integrating them into a wider concept of 'intellectual property'.  One can acknowledge that there are differences between a 'chair' and a 'table', but that they can also be integrated under the wider concept of 'furniture'.  Perfectly legitimate epistemology--don't know where he was going with that one.



Post 56

Thursday, March 1, 2007 - 11:16amSanction this postReply
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Aaron,

I don't have time for too much detail, so here is a (more or less) quick version on a few thoughts. You mentioned an idea I find very strange: property that applies in perpetuity. The reason I find this strange is that how can a man own something when he is dead? The simple answer is that he can't. Property is for the living.

Property is not a metaphysical condition—it is only a social one. I like the phrase "social convention" (with convention meaning here "pact" or "agreement," not "habit"), but this phrase sets off kneejerk reactions among Obujectivist/libertarians and I tend to avoid using it. Still, without a society, property means nothing in practical terms. For a man stranded on a desert island, hypothetically the whole island is his property, but that doesn't mean too much. It means about the same thing as the ground under our feet being our property when we walk over it, i.e., a part of the earth available for our use at the moment. Let's call this the "possession" concept of property.

One of the greatest accomplishments of capitalism was in changing the concept of property to include intellectual input. In olden times, a kingdom was the personal property of a king and he did not have to do anything for it other than use force. It was a grant from God and anyone who contested that was killed. (Brazil is suffering from this kind of residue from colonial times, when the King of Portugal granted "Capitancies" the size of large states to members of the court. These have been handed down over the years and some personal estates are still about the size of Rhode Island. Families sit on them and do not develop the land or allow it to be developed.) The defining principle behind this concept of property is that one gang had bigger clubs than all others and they bashed and killed enough people to establish their exclusive use of that land.

The capitalist concept of property means that actual use by living human beings is involved. This use needs to be more than simple nomadic wandering for hunting, too. Capitalistic property can only exist with intellectual input and work added. So intellectual input is just as fundamental to the concept of property as possession is. It was only after this concept of property started becoming protected by law that the enormous wealth we presently enjoy was able to be created.

Normal property will include all three elements: (1) tangible part of the earth or earth's elements (or, later down the road, outer space), (2) intellectual input and (3) work. But the law does not just protect the entire product, it protects each element under certain conditions. If it is just for a worker to receive wages for helping to create wealth, why is it not just for the creator of the intellectual input to remain without compensation? Just as slavery has been outlawed for workers, why is slavery of creators to be tolerated?

Notice that in all patent laws, where the development of a product is incremental and includes many patents, no one patent owner is allowed income to the entire product. He merely receives a "wage" for it (actually a fee, but I am illustrating a point), based on the "piece work" concept, so to speak. His contribution is more valuable than a factory worker's (although both are fundamental) because without him, the product would not exist in that form. That is why he receives per piece sold and the worker receives per hour worked. (These are general observations and obviously there are many variations.)

Although the term "property" is used for intellectual property, it is not the same concept as that for a finished product. It is a legal condition assigned to an idea essentially to guarantee the creator income from actual finished products. Notice that intellectual property only exists in law. Without law, it does not exist at all. There is no way to use simple force to obtain it (like conquering others for a piece of land) because without use (i.e., being added to a tangible element plus work), it does not create wealth. You cannot seize a man's mind and a good idea is only that—a good idea and nothing more—until you do something with it. On the other hand, the person who invented the wheel would have been hard put to receive royalties from tribe leaders, but the wheel is used in most wealth-producing products, even at a primitive level.

If you are concerned about the use of force in this issue, notice that force has been used to keep income from the creator over the centuries. The concept of property was mere possession and any intellectual input was incidental. The king was going to keep his land regardless of who did what on it and he backed that up with armies. Frankly, I can easily imagine our poor inventor of the wheel being bashed to death with a club by a thug who took his wheels from him, but the idea caught on regardless.

The glory of capitalism and individual rights is that now force is used to protect intellectual income. Once again, notice that wealth is created. Unlike the ancient kingdoms, which were basically static wealth-wise (if you took something, the impact was felt hard because there was not much to go around), capitalism provides increasing wealth—i.e., wealth that did not exist before and would not exist without all three elements. A charge for intellectual input can never exceed more than the products generate. In practice, only a fraction for intellectual input is ever charged.

The bottom line is that a charge for intellectual input is only made on the wealth that such input helped create and would not have existed without it. A charge is never put on taking something already existing from someone.

These thoughts apply to both patents and copyrights.

On time limits, all the arbitrary time limits that have been set throughout the history of the emergence of intellectual property (which, incidentally, is fascinating) are actually matters of inheritance—not matters of the personal property of the creator.

There is only one facet of all intellectual property that is applied in perpetuity: moral ownership. This means that whoever created it has his name attributed as creator and no one can ever remove that and then claim to have done it. (There are a few other minor considerations.)

Essentially most all other facets of property (including intellectual property) involve money, and money is a tool for the living. Dead people can't spend it and currencies constantly change as societies change. Your question about time limits involves the issue of inheritance. This is almost another issue since it deals with the rights of the dead. Essentially, I believe inheritance laws for all property should be the same and, by nature, they cannot be for perpetuity.

The problem resides in the nature of man. He constantly changes his society. As more and more wealth and technology are created, the context is often changed drastically. Arbitrary time limits set for inheritance more-or-less take the original owner's span of knowledge (time-wise) into account. Most people will never know their great-great grandchildren, so they can designate what to do with their own property to about the time of their great grandchildren within what they actually know. This is not a hard-and-fast rule and laws vary, but that is the basic reason for the time limits. Property does not exist separately from human beings, and human beings have a specific nature, which includes time limits for existence and awareness.

If man ever becomes immortal, the concept of property would have to change to include this element.

(I hope this is clear. I wrote more than I wanted to, but this is actually only scratching the surface.)

Michael

Post 57

Thursday, March 1, 2007 - 1:56pmSanction this postReply
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Well according to Aaron's logic, if they're just "patterns" then humans are just patterns of hydrogen, oxygen, carbon, sulfur, etc, which are indistinguishable from a dead human. I mean it's absurd.

And the point being intellectual property is not  just patterns, the emergent property from these patterns are a very real and tangible product. To say then that anyone can rob someone of that intellectual product is nothing more than anarchism.

(Edited by John Armaos on 3/01, 1:59pm)


Post 58

Thursday, March 1, 2007 - 1:58pmSanction this postReply
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Aaron,

You said,
"Using government to ban copying patterns necessitates using force against people for doing something entirely on and with their own real property."
Regarding your phrase, "real property" - in this context it is only clear that it doesn't include "patterns" - since in some context "real" means "real estate" and in other contexts "real" means "tangible."  Or you could be using to say "all property except patterns which we are still discussing."  I'll assume you are talking about the latter.

So, if we can logically determine that these "patterns" are valid property the argument ends.  Which is my reason for starting to describe what is property from the ground up (no pun intended).

That takes me to your two points under the statement I quoted above.
1) what vital factor of man's survival does this application of force aim to achieve?
2) how is this application of force not itself aggression?

Number 1 is where we need to go - is there a description of patterns that makes them property?
Number 2 is immaterial since if they are not property no force can be sanctioned and if they are it is.

I understand your concern that authorizing force not be done in an area where it isn't warranted.  But it would also be wrong to shrink from sanctioning the use of force where it is warranted.  My point then would be that force has nothing to do with the issue of deciding whether it is or isn't property.  Yes, it makes it an important decision, but that is case for enforcing rules on ANY definition of property.  That is, the fact that force would be envolved isn't an argument for or against the proposition that patterns are property.

So, back to a ground up description of property!
--------------------

And, purely as an aside, for Johathon:  If one said that patterns are not property, it would not be a sufficient or necessary argument against having a government.  (There is an unrefutable argument in favor of a government - it just isn't here where we are trying to establish the definition of property).

(Edited by Steve Wolfer on 3/01, 3:25pm)


Post 59

Thursday, March 1, 2007 - 2:07pmSanction this postReply
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Steve,

I think you are addressing Aaron, not me or the other Michael.

Also, I will take advantage of this post to give an errata for my Post 56:

I originally wrote: "If it is just for a worker to receive wages for helping to create wealth, why is it not just for the creator of the intellectual input to remain without compensation?"

The correct should be: "If it is just for a worker to receive wages for helping to create wealth, why is it not just for the creator of the intellectual input to receive compensation?"

Michael

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