Ayn Rand

IP Anyone?

Tibor Machan Current Events, Law , , , , , ,

There is a debate afoot now about whether one ever owns the likes of a novel, poem, computer game, song, arrangement or similar “intellectual” items. Some argue, to quote the skeptic, Professor Tom Bell of Chapman University’s School of Law, “Copyrights and patents function as a federal welfare program of sorts of creators,” while others, such as James V. DeLong of the Competitive Enterprise Institute, hold that “It is difficult to see why intellectual property should be regarded as fundamentally different from physical property.” I want to suggest a way to come to terms with this dispute in this brief essay and offer a possible resolution.

A major issue that faces one who wishes to reach a sensible understanding of intellectual property is just what “intellectual” serves to distinguish among what surrounds us in the world and how that contrasts with other kinds and types of possible property. What quality does “intellectual” point to about something? In my list, above, I am assuming that whatever is an invention or creation of the human mind amounts to potential IP, while others would argue that nothing intellectual in fact can constitute property, let alone private property. But this is merely to start things off, in need of clarification and analysis.

Some have proposed that the major element distinguishing intellectual from other property is that it is supposed to be intangible. So, for example, home or car or land parcels are tangible, capable of being brought into contact with our senses. However, a musical score or arrangement or a romance novel is supposed to be intangible – such a thing cannot be touched, felt or otherwise brought into contact with our sensory organs. Yet an immediate problem this attempt to distinguish intellectual property is that there are tangible aspects to inventions, and there are intangible aspects to these other items that are supposedly all tangible. A home is not just some raw stuff but a building that is the result of a combination of ideas, some of them inventions. Even land isn’t own exactly as it occurs in the wild but is configured by the more or less elaborate design work of landscapers. The same with whatever so called tangible items that function is property. A watch is not just some metal, mineral, glass and such assembled randomly but some assembly of such materials designed to show time and otherwise be appealing as well. In turn, a novel, song or computer game is also a combination of tangible and intangible stuff – the paper, typewriter or pen and the lead or ink with which the novel is written – only the author, and only for a little while, encounters the novel in intangible form after which the novel becomes an often very tangible manuscript.

The tangible/intangible distinction is not a good one for what can and cannot be owned and, thus, treated as distinctive enough to be related to owners. Indeed, the distinction seems to derive from a more fundamental one, in the realm of philosophy and its basic branch, metaphysics. In a dualist world reality would come in either a material or a spiritual rendition. Our bodies, for example, are material objects, whereas our minds or souls are spiritual or at least immaterial ones.

This goes back to Plato’s division of reality into the two realms, actual and ideal, although in Plato particular instances of poems or novels belong to the actual realm. A less sophisticated version of dualism, however, suggests the kind of division that’s hinted at through the tangible-intangible distinction. In nature we may have physical things as well as stuff that lacks any physical component, say our minds or ideas. Yet much that isn’t strictly and simply physical is intimately connected with what is, such as our minds (to our brains) and ideas (to the medium in which they are expressed).

So, the tangible versus intangible distinction does not seem to enable us to capture the distinguishing aspect of intellectual property. What other candidates might there be?

One candidate is that unless government or some other force bearing agency bans the supply of some item of intellectual property, there is never any scarcity in that supply.

There is certainly something at least initially plausible about this view. What is tangible is more subject to delimitation and capable of being controlled by an owner than something that is intangible. A car or dresser is such a tangible item of property, whereas a novel or musical composition tends to be fuzzy or less than distinct. One cannot grab a hold of a portion of a novel, such as one of its characters, as one can of a portion of a house, say a dresser.

Yet intellectual property isn’t entirely intangible, either. Consider that a musical composition, on its face, fits the bill of being intangible, yet as it appears, mainly in a performance or on a recording, it takes on tangible form. Consider, also, a design, say of a Fossil watch. It is manifest as the watch’s shape, color, and so on. Or, again, how about a poem or musical arrangement? Both usually make their appearance in tangible form, such as the marks in a book or the distinctive style of the sounds made by a band. These may be different from a rock, dresser, top soil or building but they aren’t exactly ghosts or spirits, either.

It might also appear that the theological division between the natural and supernatural mirrors the tangible-intangible division but that, too, is misleading since no one who embraces that division would classify a poem or novel as supernatural. Thus it seems that there isn’t much hope in the distinction some critics of intellectual property invoke. The tangible-intangible distinction seems to be independent of the usual types of ontological dualism and so the case against intellectual property, then, seems unfounded. If there is such a distinction, between ordinary and intellectual property, it would need to be made in terms of distinctions that occur in nature, without recourse to anything like the supernatural realm. Supposedly, then, in nature itself there are two fundamentally different types of beings, tangible and intangible ones. Is this right?

Again, it may seem at first inspection that it is. We have, say, a brick, on the one hand, and a poem, on the other. But we also have something very unlike a brick, for example, smoke or vapor or clouds. In either case it’s not a problem to identify and control the former, while the latter tend to be diffused and allusive. We also have liquids, which are not so easy to identify and control as bricks but more so than gases. Indeed, it seems that there is a continuum of kinds of beings, from the very dense ones to the more and more diffused ones, leading all the way to what appear to be pure ideas, such as poems or theater set designs.

So, when we consider the matter apart from some alleged basic distinction between tangible and intangible stuff, one that seems to rest on certain problematic philosophical theories, there does not appear to be any good reason to divide the world into tangible versus intangible things. Differentiation seems to be possible in numerous ways, on a continuum, not into two exclusive categories. Nor, again, does it seem to be the case that there is anything particularly intellectual about, say, cigarette smoke or pollutants, albeit they are very difficult to identify and control. They are, in other words, not intellectual beings, whatever those may be, yet neither are they straightforwardly tangible.

I would like to explore the possibility of a very different distinction, namely, one between what is untouched by human meaning and whatever is subject to it. For example, there would be no poems without intentions, decisions, deliberations and so forth. There would, however, be trees, rocks, fish or lakes. Is it the point of those who deny that intellectual property is possible that when people produce their intentional or deliberate objects, such as poems, novels, names, screenplays, designs, compositions, or arrangements, these things cannot be owned? But this is quite paradoxical.

The very idea of the right to private property is tied, in at least the classical liberal tradition – starting with William of Ockham, to John Locke and Ayn Rand – to human intention. It is the decision to mix one’s labor with nature that serves for Locke as the basis for just acquisition. In the case of such current champions of this basic individual right, such as James Sadowsky and Israel Kirzner, it is the first judgment made by someone to invest something with value that serves to make something an item of private property.

However all of this comes out in the end, one thing is certain: the status of something as property appears to hinge on it’s being in significant measure an intentional object. But then it would seem that so called intellectual stuff is a far better candidate for qualifying as private property than is, say, a tree or mountain. Both of the latter are only remotely related to human intentions, whereas a poem or novel cannot have their essential identity without having been intended (mentally created) by human beings.

Of course, in becoming owned, a tree and mountain does become subject to intentionality, as when someone decides to make use of such a thing for his or her purposes. And, conversely, even in the case of a poem, there are words that are as it were pre-existing and only their particular concatenation is a matter of intention.

I am not certain what the outcome should be from these and related reflections. They do suggest something that is part of both the ordinary and the so called “intellectual” property traditions, namely, that when human beings are agents of creation, when they make something on their own initiative – when they invest the world with their distinctive effort, they gain just possession of what they have produced. And if there is anything that they produce more completely than such items as poems or computer games, I do not know what it might be.

For me, then, the issue is this: When one designs and produces something novel that one has thought up, some gadget or machine or such, does one then own this design/product? And if someone else copies it, did they take something from the former against his or her will? If the answer is yes to the former, then I think the answer must be yes to the latter.

Whether the protection of one’s property occurs via this or that legal device — patent, contract, trademark, what have you — seems a secondary issue and detail. The first is ownership. Also, what one’s owning something one conceives and makes may mean for others who may be thinking up the same thing later is irrelevant, no less so than if one finds a piece of land and appropriates it and then later others, too, find it and would like to appropriate it but now may not.

Those, by the way, who complain that governments enforce patents and copyright laws, should realize that governments also enforce property rights in societies with governments. Governments in such societies are akin to body or security guards. Certainly, taxing others for this enforcement is unjust but that isn’t the essential idea behind the enforcement, not if one understands that copyright and patents could be protected without government, as well, just as other private property can be protected without government. But until it is government that protects — not establishes but protects — rights, it will also protect the right to intellectual property, if there be such a distinct thing in the first place. Taxation for such protection is irrelevant since taxation for the protection of other types of property is also beside the point.

Finally, that patents run out may be compared to the fact that ownership can cease with death, too. Of course, patents or trademarks or copyrights could all be reassigned from one to another owner, just as property in anything can be reassigned upon voluntary exchange or transfer. There is nothing necessarily odd about this, simply because the matter hasn’t developed very smoothly and consistently.

Some reflections on the Right to Private Property

Tibor Machan Current Events, Liberty , , , , , ,

[Editor’s note: the following is an essay by Dr Tibor Machan, professor emeritus in the department of philosophy at Auburn University, and current holder of the R. C. Hoiles Chair of Business Ethics and Free Enterprise at the Argyros School of Business & Economics at Chapman University in Orange, California. He is also a research fellow at the Hoover Institution at Stanford University, an adjunct scholar at the Cato Institute, and a former adjunct faculty member of the Ludwig von Mises Institute. Machan is a syndicated and freelance columnist; author of more than one hundred scholarly papers and more than thirty books. We are extremely grateful for his generosity in regards to sharing this article.] 

Private Property Rights

The first step in the destruction of capitalism must be the abolition of the right to private property. Marx and Engels were clear about this in The Communist Manifesto. And many who sympathize with his idea of a socialist political economy agree. This is one reason many such thinkers and activists are champions of land use, eminent domain and related legal measures that render even the most personal of real property subject to extensive government control.

Of course, there are others who have argued that the right to private property is not only the basis for vigorous commerce but also the foundation of other individual rights, including freedom of speech, freedom of religion, and freedom of the press. It is arguably, in a somewhat roundabout way, the conceptual foundation of the right to freedom of political participation. Without some safe haven, one’s private domain, to return to after the vote has gone against one’s way, one will be vulnerable to the vindictiveness of the winners! And political advocacy without exclusive jurisdiction over one’s domain is difficult to imagine since advocacy, support and such political activities could not be carried out independently of other people’s permission.

Accordingly, it is no mere academic curiosity whether the idea of private property rights is well founded, sound, or just. Within American political and legal history there has been some confidence in the soundness of this principle but the basis of it has not gone unchallenged over the last two centuries. One need but consider the recent work by Liam Murphy and Thomas Nagel, The Myth of Ownership, Taxes and Justice (Oxford University Press, 2001) to appreciate how vulnerable is that confidence. Indeed, it is mostly members of the discipline of economics who see merit in the idea of private property, and then not as a feature of justice but more as a feature of an efficient system of resource allocation.

Yet, there is reason to think that the right to private property is a good idea, that everyone should be understood to have this right and that the institutions built upon it should be preserved. Indeed, they should be extended into areas where other ideas have held sway (for example, environmental public law). Let us consider this idea, then, and see whether we can be confident in its validity as a sound political-legal concept. 

From Mixing Labor to Rewarding Good Judgment Continue reading →

Libertarianism and Psychology

Fred Foldvary Liberty, Philosophy , , , , , , ,

by Fred Foldvary

Recently there have been a stream of negative critiques of libertarianism. All of them are misunderstandings.  It seems that these critics are just dressing up their antagonism with pseudo-scientific textiles.

The latest attack is in Psychology Today. Peter Corning, Ph.D., asks and answers “What’s the Matter with Libertarianism?” under the rubric “The Fair Society.”

He says, “The libertarian model of individual psychology is grounded in the utilitarian, neo-classical economics model of ‘Homo economicus,'” by which he means selfish economic man. Corning provides a couple of quotes by Nozick and Dawkins, but no general evidence that such is the viewpoint of most libertarians.  Is there a survey?  Is there  inductive logic leading to this conclusion? No, there is nothing. And this is supposed to be a scientific finding of a scholarly psychologist.

He cites the Wealth of Nations by Adam Smith, but is evidently unaware of Smith’s other book, The Theory of Moral Sentiments, in which Smith explained the other human motivation, sympathy for others.  Most libertarians that I know personally or from writings believe that it is quite good to be benevolent.

Perhaps Corning is confusing libertarianism with an extreme version of Randian Objectivism. He cites Ayn Rand as writing “Man’s first duty is to himself.”  But libertarian philosophy posits no such “first duty.”  The only libertarian moral duty is to avoid coercive harm to others.

Some libertarians are “anarcho-capitalists” who seem to envision an atomistic society of individuals contracting with protective agencies.  But libertarianism includes the communitarian vision of consensual communities with collective goods.

Corning claims that “libertarians generally have no model of society as an interdependent group with a common purpose and common interests.”  But no libertarian denies that society is interdependent. What is denied, and properly so, is that all the persons in a country have some common purpose and interests.  A multicultural society such as the USA consists of many interests, sometimes in conflict.  The interest of a thief clashes with that of peaceful victims.  If libertarianism is applied to society, the diverse interests can co-exist, the rule being that one may not force one’s interests on others.

Corning then notes that corporate interests sometimes perpetrate malfeasance. Yes, and if they commit fraud, that is theft, and libertarian policy would be to punish this.

He writes, “our first collective obligation is to ensure that all of our basic needs are met.” Now we see his political agenda.  Corning is a statist collectivist who favors the governmental welfare state. There is no abstract moral collective obligation. All obligations are individual. There can be a group with a mutual contract that then creates a collective obligation, but only from individual delegation.  As to basic needs, libertarian policy enables people to apply their labor and keep all the wages from that, which enables them to provide for their needs.  It is today’s statist restrictions and taxes that deprive workers of the ability to obtain their needs.  The few adults unable to work would get charity. The mass poverty of today is caused by government, not by the non-existent free market.

Evidently Corning believes that a libertarian world would be too selfish to care about the few who fall into misfortune.  But there is no evidence that greater freedom results in greater selfishness in the sense of not caring about others.  So here we have an article that seeks to apply psychology to an ideology, but with no evidence and with flaws in logic.  Psychology here is being applied as a cover for ideological views.  Has this been peer reviewed, or are the peers just as biased and lacking in scientific principle?

Rare Earth Elements: Stockpile or Markets?

Warren Gibson Economics , , , , , , , , , ,

Quick, what do you know about lanthanum, praseodymium, neodymium, or dysprosium? If you said they are chemical elements, you are right: numbers 57, 59, 60, and 66, to be exact. They and their neighbors on the periodic table, collectively “rare earths,” were once mere curiosities tucked in between barium and tungsten. Now they’re having their day in the sun, thanks to new technology, as did uranium and plutonium when atomic energy was developed. The military may begin stockpiling them.

Good idea or not?

My first encounter with these elements was a project that developed high-tech shock absorbers to protect a replacement camera for the Hubble telescope during the camera’s rough ride to orbit. These devices, called M-Struts, pioneered the use of permanent magnets for shock mitigation. The only material our team found that would provide sufficient magnetic flux density (a measure of the strength of a magnetic field at a given point) was a rare earth alloy, NdFeB (neodymium-iron-boron). This material could only be procured from China.

M-Struts were a one-off project that had no discernible effect on the demand curve for neodymium. But now the demand curve is crowding up against the supply curve largely because of rare earth applications in “green” energy devices such as wind turbines (extra points if you knew that). Continue reading →

Atlas Shrugged Part II

Warren Gibson Current Events, Liberty, Politics , , ,

I got around to seeing the movie this morning along with about ten other folk. I was reminded of why I don’t go to movie theaters: they’re run by sadists who like to torment people with a quarter hour of promos following the advertised starting time, meat-locker temperatures and ear-splitting sound. I didn’t bring my wife knowing she couldn’t have endured the torment but I’ll get the DVD later.

So, what of the movie? Quite good, mostly. The screenplay is faithful to the novel, thanks, no doubt, to David Kelley. The special effects, notably the tunnel disaster and the airplane chase and crash, are powerful. I wasn’t bothered by the change to an all-new cast. Rearden’s trial was done well. The acting, however, is mixed. Rearden is good and the bad guys are good but Dagny, who is really the central character, was a disappointment. She looked almost bored as she piloted her plane toward what increasingly looked like death. Only later did she crank up the intensity.

Just a couple of nits: two men can’t lift a concrete railroad tie. Galt tells Dagny not to move because she’s hurt and then extends a hand to drag her out of the wrecked plane. A few others but nothing substantial, really.

I give it 3.5 stars out of 4, but I’m sure the critics won’t agree. It looks like the movie will follow Part I into oblivion, sad to say. One only hopes that DVD sales will pick up and that it will enjoy the same sort of underground success that the novel enjoyed following its scathing reviews.

Friedrich Hayek: Champion of Liberty

Brandon Christensen Current Events, Economics, Links, Politics , , , , ,

From Richard Epstein:

Thus Hayek’s 1940 contribution to the “Socialist Calculation” debate debunked the then-fashionable notion that master planners could achieve the economic nirvana of running a centralized economy in which they obtain whatever distribution of income they choose while simultaneously making sound allocations of both labor and capital, just like in Soviet Russia.

Hayek exposed this fool’s mission by stressing how no given individual or group could obtain and organize the needed information about supply and demand conditions throughout the economy. The virtue of the price system was its use of a common unit of measurement—money—to allow various actors to compete for a given resource without having to lay bare why they need any particular good or service. The seller need only accept the highest bid, without nosing around in other people’s business. The interaction between buyers and sellers allows for constant incremental adjustments of both price and quantity. Old information gets updated in a quick and reliable way, thereby eluding the administrative gauntlet of the socialist state.

This essay, which y’all should read, was sparked by the attacks on Rep. Paul Ryan’s supposed intellectual influences F.A. Hayek and Ayn Rand.

Paul Ryan and Ayn Rand: What’s the Connection?

Brandon Christensen Current Events, Links, Politics , , , , ,

I will admit up front that the only Ayn Rand novel I’ve read (so far) has been Anthem. I liked it. It reminded me of Brave New World and 1984. A lot of books came out at around the same time as Anthem that had themes of the struggle between totalitarianism and the individual. Recent commentary has focused on Rep. Ryan’s connections with the late, great author, though, and Will Wilkinson does a great job of summing them all up in a post over the Economist. An excerpt:

In practice, arguments like Mr Black’s and Ms Walsh’s tend to come to the silly idea that one’s ideological opponents are duty-bound (by their own lights!) to either unilaterally disarm or shut up. Heads, I win; tails, you lose. It’s a cheap trick. The argument as usually deployed also depends on a combination of lazy partisan Manichaeism and the naive practice of taking politicians at their word. Paul Ryan is an elected official whose views therefore fall squarely within the ambit of conventional political wisdom. Despite his professed admiration for Ayn Rand, and the ardent wishes of his admirers and detractors alike, Mr Ryan is far from a laissez faire radical.

Indeed. Do read the rest of the post here.

What are your thoughts on Ryan as Romney’s VP? Longtime reader Hank has shared his thoughts here. Personally, I agree with Hank and I don’t think the nomination matters all that much, and I share libertarian sentiments that Rep. Ryan is hardly a fiscal conservative, but I am also curious as to what you think.