Why Intellectual Property Rights? A Lockean Justification

Posted by khalling 8 years, 10 months ago to Philosophy
105 comments | Share | Flag

well researched paper by Professor Mossoff. It begins with an historical treatment of Locke and Anglo-American development of legally protected intellectual property and moral justification. The paper then addresses especially the Libertarian arguments against IP, including the utilitarian model of property rights in land and scarcity arguments.
SOURCE URL: http://www.libertylawsite.org/liberty-forum/why-intellectual-property-rights-a-lockean-justification/


Add Comment

FORMATTING HELP

All Comments Hide marked as read Mark all as read

  • Posted by $ sjatkins 8 years, 10 months ago
    I am a software architect and I consider software patents as the worse thing that has happened to my profession. A software algorithm is more again to a bit of mathematics or a proof than it is to say a new physical process or physical invention. Like the bit of mathematics or proof many competent developers will hit on roughly the same thing if it covers a sufficiently common need. To lock up future developers with a patent grant over an algorithm is a very serious limitation to future work and to innovation of said algorithm. To make matters worse it is common to stretch the utility of the patented software to cover a much broader area than the actual algorithm or actual implementing code covers. This only increases the problem. Effectively the algoritmic solution space becomes balkanized into a lot of petty fiefdoms. I have worked at countless companies that reinvented wheels long previously invented to either steer clear of known software patents or to create counter patents. This gaming of temporary monopoly in the realm of software algorithms is not at all helpful.

    It is common for young software companies to completely ignore any and all patents and not go looking for them as they can only sew fear uncertainty and doubt and they can hardly afford to license them anyway. And the theory is that they aren't worth suing as they are too small anyway.

    However patent trolls are the next form of negative effect. They buy up patents and aggressively go after all possible parties with legal threats to pay extortion or be hauled into a court battle they cannot afford.

    I think any thinking person can see that this mess is far far beyond the green field vision of the rights of and rewarding creators. The system has become deeply sick and contrary to intent in many ways.
    Reply | Mark as read | Best of... | Permalink  
    • Posted by Poplicola 8 years, 10 months ago
      sjatkins could not be more right about the damage being inflicted by software patents. As a programmer and lawyer I see them as a tremendous drag on innovation and to be totally candid I have yet to read a software patent that actually achieved its theoretical Constitutional objective of trading a limited time monopoly on the application of a useful and novel invention for its disclosure to the public.

      Patents are supposed to teach those skilled in the art how to actually accomplish something, but in practice the vast majority of software patents read like elevator pitches for new dot com ventures or boil down to something from the lips of Captain Obvious.

      The really sad thing is that most Law Schools push the lie that no real world programmer would write a single of line of code but for the chance that it might lead to a software patent. In truth the majority of software patents are applied for to defend against other patents or as a lure to attract venture capital because everyone else is filing them.
      Reply | Mark as read | Parent | Best of... | Permalink  
      • Posted by dbhalling 8 years, 10 months ago
        There is no such thing a software patent. There are patents on inventions that are implemented using software and those are the same thing as a patent on electronics.
        Reply | Mark as read | Parent | Best of... | Permalink  
    • Posted by $ blarman 8 years, 10 months ago
      One of the ironic things about software patents in and of themselves is that they rely wholly upon the microcode architecture in their application to even function! What I mean by that is that a software program is more about an end than the means. In modern computing, the compiler (be it x86, RISC, ARM, etc.) takes the more general "what are we trying to accomplish" and turns it into something the hardware can actually process! If you didn't have the compiler to translate the code into what the hardware actually works on nothing would even function! So a computer software program in and of itself is only a derivative or companion work!
      Reply | Mark as read | Parent | Best of... | Permalink  
    • Posted by dbhalling 8 years, 10 months ago
      You have no evidence on your side. Which countries have the strongest software industries? Those with no patent protection? NO your position is without any fact or reason.
      Reply | Mark as read | Parent | Best of... | Permalink  
    • Posted by DeanStriker 8 years, 10 months ago
      Very good analogy, which reveals a great difference between original concept and the artificial "laws" of patent. Morally "original concept" prevails, while the "laws" serve in such instance to greatly muddy the waters.

      Perhaps mere original concept, if lacking a product made available for consumption is, or should be, insufficient to support a claim of patent protection?

      Small wonder that our lives have become subjected to the so-called Rules of Law, always written by the lawyers for the PTB, who rarely if ever consider anything beyond more Force!
      Reply | Mark as read | Parent | Best of... | Permalink  
      • Posted by dbhalling 8 years, 10 months ago
        Actually the founders looked at working requirement and rejected it. Inventors have as much or more rights than manufactures who are just reproducing what has been created.
        Reply | Mark as read | Parent | Best of... | Permalink  
    • Posted by dbhalling 8 years, 10 months ago
      Software is a way of wiring an electronic circuit - check you logic and history.

      Ignorance of other people's property rights is not a valid argument for violating them
      Reply | Mark as read | Parent | Best of... | Permalink  
      • Posted by $ sjatkins 8 years, 10 months ago
        The point is the very valid question of what is and is not a valid type of property to consider for which forms of protection. That question takes much deeper consideration than just support for individual rights and poperty generally. It gets into what should be considered property and whether there are degrees of "property" as far as appropriate legal protections.

        My logic is fine and I know a LOT about software. Check your attitude. A sort algorithm, for instance, is certainly not a way of wiring an electronic circuit. The wiring doesn't change one iota when you run a program. That is the entire point of a general purpose computer after all.
        Reply | Mark as read | Parent | Best of... | Permalink  
        • -1
          Posted by dbhalling 8 years, 10 months ago
          Then you do not understand what software is. Without the hardware it is meaningless gibberish, perhaps you should read a little history about computers.
          Reply | Mark as read | Parent | Best of... | Permalink  
          • Posted by $ blarman 8 years, 10 months ago
            db - you're not an expert on computers. Stop trying to tell those of us who are that we're idiots.

            Software runs on hardware, but it's NOT hardware. The reason you use software at all is to AVOID having to build single-purpose hardware for every single instruction the computer has to carry out. This makes the computer flexible and able to run a myriad of different instructions rather than being limited to only what the hardware itself is wired for.
            Reply | Mark as read | Parent | Best of... | Permalink  
            • Posted by strugatsky 8 years, 10 months ago
              I would suggest that a proper way to look at software is as virtual hardware. The programming temporarily virtually creates or modifies an electrical logic circuit (hardware) to perform a logical operation. It may then be discarded or repeated.
              Reply | Mark as read | Parent | Best of... | Permalink  
              • Posted by dbhalling 8 years, 10 months ago
                Reasonable
                Reply | Mark as read | Parent | Best of... | Permalink  
                • Posted by $ WilliamShipley 8 years, 10 months ago
                  But not quite accurate. What actually happens is the actual hardware circuits read the information and change themselves based on the information.

                  This is pretty much what all signal processing electronics does. The electronics is the controlling factor, not the signal. There is nothing the program can do to get the circuits to do something other that what they are already wired to do.
                  Reply | Mark as read | Parent | Best of... | Permalink  
              • Posted by $ blarman 8 years, 10 months ago
                I don't disagree with your assessment. It is this abstraction from the hardware that not only provides incredible utility, however, but also separation. To conflate hardware and software by saying that software is just a glorified version of hardware is to be abjectly ignorant of the reality of how the two work together.
                Reply | Mark as read | Parent | Best of... | Permalink  
                • Posted by strugatsky 8 years, 10 months ago
                  There are probably various ways to skin this cat. First, I should have added a qualifier to my description above that all the processes that the software perfoms have to be within the area of capabilities of the hardware.

                  The differences in opinion that I'm observing here may have to do with the current programmers' viewpoint that software lives in a separate world from hardware. As proof of that, most of the younger software developers that I've interracted with have no idea how the operating system works and have no concept, or interest, in the machine language / compiler interface to the hardware. To be fair, with current computer capabilities and development levels, perhaps they don't need to. But when one tries to dissect the cat, as in patent application, perhaps a different story emerges, as the software does not live in a separate world from hardware.
                  Reply | Mark as read | Parent | Best of... | Permalink  
      • Posted by $ WilliamShipley 8 years, 10 months ago
        That's a metaphor, and not a particularly useful one since it isn't actually wiring an electronic circuit and to wire a circuit to actually do what even a relatively simple program would do would be far too complex for anyone to actually do.
        Reply | Mark as read | Parent | Best of... | Permalink  
        • Posted by dbhalling 8 years, 10 months ago
          No it is not a metaphor - what is it you think that software does without hardware - electronic circuits.
          Reply | Mark as read | Parent | Best of... | Permalink  
          • Posted by $ WilliamShipley 8 years, 10 months ago
            It's analogous to a television program. You cannot watch it without the electronic circuits of the television that display it but it is not a part of the television, itself. After the program is over, the television set is unchanged.

            I grant you, when you are dealing with microcode that is hard coded into a specific device as a part of the device it might be appropriate, although copyright can work with that as well.

            Certainly the BIOS in the PC is copyrighted, not patented. Although one can argue that IBM may have been better off patenting it. I do think that patenting something as complex as a BIOS would be an amazing challenge. The concept of a BIOS was existing art. It does make an interesting example since considerable effort was made to duplicate the function without copying the code.
            Reply | Mark as read | Parent | Best of... | Permalink  
            • Posted by dbhalling 8 years, 10 months ago
              What exactly is the analogy Software does nothing until it is interpreted by hardware and converted into electrical signals.

              Television is electronics. The story presented on the CRT is not television, it is a story. Programming is not like the story, because the story does not tell the television how to do anything. The television just presents an image and sound that is captured in one place and displayed on a screen.
              Reply | Mark as read | Parent | Best of... | Permalink  
              • Posted by $ WilliamShipley 8 years, 10 months ago
                You can have a football game which is recorded by a variety of means and edited by a producer. The production can then be stored on a variety of media and can be played on a variety of devices to produce an image -- it is copyrighted. Your television is a device, Sunday Night Football is not.

                Or, another example, 6615130900. I have a phone on my desk that if I punch those numbers into it, will allow me to get a pizza. The number is not a 'device for ordering pizza', it is a series of instructions I type into hardware to produce a result. I do not rewire the phone system, it makes temporary connections. I do not even have to use this phone, I have cell phone of completely different design that will achieve the same result.
                Reply | Mark as read | Parent | Best of... | Permalink  
                • Posted by 8 years, 10 months ago
                  again, you are conflating concepts. software is not like a football game nor a story nor a TV show. It's only purpose is to tell an electronic circuit to do something specific. That electronic circuit may do all sorts of things, including playing TV shows, or broadcasting a football game. No one is using the software in any artistic fashion. That is the specific for copyright-artistic expression.
                  Reply | Mark as read | Parent | Best of... | Permalink  
                  • Posted by Poplicola 8 years, 10 months ago
                    I'd have to strongly disagree with the notions that software's "only purpose is to tell an electronic circuit to do something specific" and that "no one is using the software in any artistic fashion".

                    When I write code, I do so for the purpose of illuminating my thought processes for myself and anyone else who might want to modify my code in the future. There is an entire movement called Literate Programming that calls on programmers to craft systems that can stand on their own as works of literature.

                    The fact that I can express myself within the formal constraints of a programming language, selecting from a myriad of alternative ways of making a program achieve my desired end in no way takes away from its qualitative nature as an "artistic performance".
                    Reply | Mark as read | Parent | Best of... | Permalink  
                    • -1
                      Posted by dbhalling 8 years, 10 months ago
                      Then you do not understand what software does.
                      Reply | Mark as read | Parent | Best of... | Permalink  
                      • Posted by $ blarman 8 years, 10 months ago
                        db - we don't try to tell you what a patent attorney does. I'd recommend you stop trying to tell programmers that they are the same as electrical engineers.
                        Reply | Mark as read | Parent | Best of... | Permalink  
                        • Posted by 8 years, 10 months ago
                          no one is telling you what you DO, but what you do has a DEFINITION.
                          Reply | Mark as read | Parent | Best of... | Permalink  
                          • Posted by $ blarman 8 years, 10 months ago
                            You are trying to tell programmers and electrical engineers (two completely different lines of study) they are the same thing. They are not. They are similar but very different disciplines.

                            The argument db is trying to make is like saying that Francisco D'Anconia and Hank Reardon do the same thing because they both work with metal. Those of us who actually work in the industry understand the critical differences between the two.
                            Reply | Mark as read | Parent | Best of... | Permalink  
                            • Posted by 8 years, 10 months ago
                              blarman, the majority of our clients are software engineers. we get it. trust me
                              Reply | Mark as read | Parent | Best of... | Permalink  
                              • Posted by $ blarman 8 years, 10 months ago
                                I would like to believe that, but the arguments db presents and the WAY he presents them make that very difficult to believe or accept. His is an ideological viewpoint which accepts no alternatives but his own. That kind of mindset in the face of everyone else here who actually are functional professionals (as opposed to being associative professionals) is exactly the kind of stubbornness that make us all downvote him.

                                If he wants to be reasonable and inquire about _why_ we view things the way we do and then present counterpoint, we can go with that. But the WAY he approaches the entire argument is nothing short of the tyrannical "my way or the highway" approach. I get that that may be what works in a court of law, but it's the wrong tack to take in a forum. And he only gives fuel to our perceptions of him as an intolerant ideologue when he devolves to ad hominem attacks and spurious references to "religion". Those types of outbursts speak larger than any logical argument he would make and have no other outcome than to alienate. If he wants others to seriously consider his arguments, he needs to demonstrate that he will seriously consider theirs. And I'll be perfectly honest with you that he isn't building any bridges on this topic.
                                Reply | Mark as read | Parent | Best of... | Permalink  
                        • Posted by 8 years, 10 months ago
                          a patent attorney tells you what can be patented and why. Yet, on this post-all of you are experts on what should be patented. You base your arguments not in Objectivism or any other value system I can see-rather pragmatism. Objectivism does not work that way.
                          Reply | Mark as read | Parent | Best of... | Permalink  
                          • Posted by $ WilliamShipley 8 years, 10 months ago
                            I'm trying to stay away from this argument, honest. But I have to point out the key issue in your statement 'can' vs 'should'. I am perfectly willing to consider DB an expert on 'can'. Those of us relying on the legal environment to allow us to exercise our creativity have every right to 'should'.
                            Reply | Mark as read | Parent | Best of... | Permalink  
                        • Posted by dbhalling 8 years, 10 months ago
                          Blarman try logic and reason. You need to study some history. Answer these simple questions:

                          1) Software without any hardware is what?
                          2) What is a computer?
                          3) How does software interact with a computer?
                          4) What is a compiler? Why is it needed?
                          5) How were the first computers "programmed'? Why were they programmed?

                          Your position is so absurd as to be off the charts. You and the people on this post are being intellectually dishonest and attempting to avoid the hard work of thinking. You are all a bunch of second handers.

                          You all chose to spam the site with your religion instead of addressing the serious scholarship of this paper.
                          Reply | Mark as read | Parent | Best of... | Permalink  
                          • Posted by $ blarman 8 years, 10 months ago
                            1. Take the hardware away and all you get are logical instructions with no engine. Take the software away and you have a paperweight - or at best a single-function tool. The relationship between hardware and software is one of co-dependency - not primacy.

                            2. A computer is a programmable tool. If you can't program it (alter its ability to function and solve different problems) it isn't a computer. An abacus is NOT a computer. Babbage's differential engine was a _very_ rudimentary computer.

                            3. That question doesn't make sense. Software doesn't "interact". Users interact. Please explain.

                            4. A compiler takes the "code" written by a software programmer in a second-, third-, or fourth-generation language and translates it into byte code that actually gets processed through the hardware as pulses of electricity (or light if you're using optronics). If you don't compile the code, it is just ideas from a human about what a computer should do. The compiler translates the _should_ into _can_ and _how_. If you take the very rough example of an automobile engine, the compiler is the transmission. It takes the energy being generated through internal combustion and channels it into a mechanical action that moves the car forward.

                            5. The original ENIAC was massive and configured to do one thing and one thing only: calculate artillery trajectories. They physically had to re-wire the entire thing to get it to perform a different task. My dad did his programming using stacks of punch-cards when he was in college. Those stacks were the "software" used to set up the computer to perform a single set of computational tasks. In order to change the task, you had to put in a new set of punch cards and you were in real trouble if you got one out of order or dropped that two-foot high stack. Modern computers simply make it very easy to change out the current task(s) of the computer by being able to constantly reconfigure themselves logically - but not physically. That's the beauty of software - it introduces the flexibility to alter a computer's operations and use without physical/hardware change.

                            Your argument is of the equivalent that every modern computer is no different than ENIAC. What I am trying to point out is that yes, one CAN hard-wire a computer to solve any specific problem given it. But just like ENIAC, the computer would be useful for that purpose and that purpose ONLY. With the addition of software, the computer can shift purposes in nanoseconds to address a whole myriad of increasingly-complex problems - all without the need for more silicon or wire. But that difference is critical in how we see intellectual property in its application to computing.

                            Gotta laugh at the ad hominem. Gotta laugh at the fact that it is only you who is trying to advance the absurdity that software and hardware are the same thing in spite of all the field experts around you. You want to try to tell us it is we who are being unreasonable or intellectually dishonest. Good grief. Programmers and Electrical Engineers are literally the most logical people you will ever meet. It is ingrained in everything we do. Cause -> Effect. If your position were so overwhelmingly logical, we'd already be buying into it. It should say something spectacularly obvious that we are united in a different interpretation.

                            I would further note that it is this very definitional argument which colors the two ways we approach this issue. I don't have a problem with software as an intellectual endeavor worthy of property protection. But I also recognize software for what it is - virtual instructions - and what it is not - a physical manifestation. The gas to the engine.
                            Reply | Mark as read | Parent | Best of... | Permalink  
                            • Posted by strugatsky 8 years, 10 months ago
                              I am addressing only #5 of your comment above. Specifically - "But just like ENIAC, the computer would be useful for that purpose and that purpose ONLY. With the addition of software, the computer can shift purposes in nanoseconds to address a whole myriad of increasingly-complex problems - all without the need for more silicon or wire." My postulate would be that your statement is correct only within a specific area that the hardware was designed to operate in. The current computer technology is very good at straight forward Boolean decisions, but is not capable of true neural network thought processes, mimicking a human. The point being here is that software, even with a "general purpose" computer is not independent of hardware. The current hardware has vast capabilities (and so does software), that people often think of them being independent; they are not, just that their areas of capability are vast and we don't often see the edges.
                              Reply | Mark as read | Parent | Best of... | Permalink  
                            • Posted by $ WilliamShipley 8 years, 10 months ago
                              It was traditional to take your box of punched cards and draw a slant line with a marker so as to have at least a hope of putting the cards back in order if someone dropped it trying to put it into the card reader.

                              Of course computer operators prided themselves on picking up a whole 2000 card box at once and stacking it into the reader.
                              Reply | Mark as read | Parent | Best of... | Permalink  
                      • Posted by $ WilliamShipley 8 years, 10 months ago
                        You keep telling software engineers that they don't know what software does. Have you written software?

                        Poplicola is right, there is more to a program than instructions for running the computer, there is documentation and structure for supporting the maintenance of the program by other people.

                        I wouldn't go as far as the literate programming movement, but I do try to converse with others within my code -- even if it is my future self. When you are working on a program for twenty years, you have to leave a lot of notes.

                        Back in the mid 70's I was reading some code for the sort/merge routine on a mainframe. There was two pages of uncommented assembler code with only a single comment in the middle: "Now I'm doing something tricky". We try not to do that kind of thing.
                        Reply | Mark as read | Parent | Best of... | Permalink  
                        • Posted by 8 years, 10 months ago
                          I wanted to stick to the topic of the attached paper. You wanted to make it into a software patenting argument. Because you are unwilling to explore and discuss the moral underpinnings of Objectivist and Lockean thought on the intellectual property we are having a dis-embodied discussion here. This happens frequently with Austrians.
                          db has written software. He is an electrical engineer and a physicist.
                          I will not comment any further on this post to you.
                          Reply | Mark as read | Parent | Best of... | Permalink  
                          • Comment hidden by post owner or admin, or due to low comment or member score. View Comment
                          • Posted by $ WilliamShipley 8 years, 10 months ago
                            Actually, if you check back in the thread, I did not bring up the software patenting argument in any of the threads on this post. I only responded to it once it got going. In this particular thread sjatkins did.

                            My comments on the 'second inventor' are about the moral underpinnings because they represent a situation where someone is deprived of the product of their intellect.
                            Reply | Mark as read | Parent | Best of... | Permalink  
                            • Posted by 8 years, 10 months ago
                              william, please see that you have overwhelmed the post. I tried to steer it back to the scholarship linked to the post, but you have no interest in discussing that. This is an Objectivist site. Serious objectivist posts deserve their philosophical due. I remain frustrated that this post went awry.
                              Reply | Mark as read | Parent | Best of... | Permalink  
                              • Posted by $ WilliamShipley 8 years, 10 months ago
                                I respond when someone disagrees with me. If that troubles you that's unfortunate.

                                As to the portions related to people independently inventing something, that's on point. Locke's argument is that a person has a property right in the creation of their intellect. I absolutely agree. The idea that only the first person to create something has that right is not supported in the text.
                                Reply | Mark as read | Parent | Best of... | Permalink  
                                • Posted by dbhalling 8 years, 10 months ago
                                  You are an intellectually dishonest second hander and defender of thieves. You are worse than an Obama or Holder, because people know they are against freedom, but you pretend to care about freedom. You only care to SPAM this site with trashy arguments, you never stick on topic, because you are TOO LAZY to actually THINK.
                                  Reply | Mark as read | Parent | Best of... | Permalink  
                                  • WilliamShipley replied 8 years, 10 months ago
                  • Comment hidden by post owner or admin, or due to low comment or member score. View Comment
                  • Posted by $ WilliamShipley 8 years, 10 months ago
                    As I pointed out to K, copyright is also used for architecture, which is a blend of artistic and practical. Plus, of course, your non-fiction books are also copyrighted. Although you can express facts in an artistic fashion.

                    I would also suggest that there is some artistic style to source code, certainly people who read and write it regularly can recognize that.

                    Of course it's not exactly the same but it certainly isn't wiring either.
                    Reply | Mark as read | Parent | Best of... | Permalink  
                    • Posted by 8 years, 10 months ago
                      almost all inventions have an artistic component and a practical component. People get patents on building and architectural inventions all the time. This is something patent attorneys figure out every day when they are dealing with an invention. what's the artistic part of the invention and what are the functional elements. This is part of the patent process.
                      Reply | Mark as read | Parent | Best of... | Permalink  
                    • Posted by 8 years, 10 months ago
                      legally expressed, a copyright does not preclude you from talking about my ideas. It precludes you from stating my ideas as your own using my way of expressing them.
                      Reply | Mark as read | Parent | Best of... | Permalink  
  • Posted by $ puzzlelady 8 years, 10 months ago
    A long read but worth it for its clarity and hierarchical development.

    It would be interesting to know just when humans began to treat their "inventions" or improvisations as personal property. In earliest times it was simply animals imitating each other when one came up with an innovation, like washing one's food. The 100th monkey paradigm showed that sharing led to improved methods.

    With no lawyers to formulate contracts, early man built on each new discovery that emerged from any member of the clan. Physical property was what one could protect. The notion of respect for others' property came later. In the most elementary stage, if I climb a tree to fetch a banana, it is mine to eat unless I care to share it. It was a breakthrough concept, until marauding and pillage became an established practice for acquiring goods. Then we went through the phase of "might makes right" where the chief or king owned everything, even the serfs. We've come a long way, baby!

    It seems to me that the first layers of the ownership meme were possession of physical objects, and as the human intellect developed into higher stages of complexity, ideas became a kind of property as well. Once language and writing were achieved, it became easier to document where ideas came from and whose they were. The notion that first-come, first-served, or the first to occupy a piece of land, or the first to find an oil well or copper mine, is its rightful owner is a throwback to a time when there were still things to be found that no owner had already claimed. Finders, keepers.

    In today's world, ownership should certainly belong to the creator, although the creator can choose to give it, rent it, or put it into open source. My own logic suggests that anything an individual creates, by investment of energy through muscle or mind, rightfully belongs to that individual along with all benefits or profits from it. That is the basis of a civilized world.

    In the ever more complexified social systems of laws, redefined rights, and government intrusions into individuals' lives, devious methods of extraction have been set up, whether through taxes or licenses and fees, through which the amount an individual is allowed to keep is no longer within the individual's control, and more and more of his substance is syphoned away for those others whom the controllers want to benefit.

    We have the illusion of still having property rights, physical and intellectual, so we endure. And this system crept in so gradually that we are being bled to death by imperceptible stages, having accepted it as the norm that we own only what the government allows. But Ayn Rand noticed, and there is the antidote if only we can heed it. -- Sorry if I've drifted a bit past the patent law topic.
    Reply | Mark as read | Best of... | Permalink  
  • Posted by ObjectiveAnalyst 8 years, 10 months ago
    “Though the Earth…be common to all Men, yet every Man has a Property in his own Person. This no Body has any Right to but himself. The Labour of his Body, and the Work of his Hands, we may say, are properly his. Whatsoever then he removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property. It being by him removed from the common state Nature placed it in, it hath by this labour something annexed to it, that excludes the common right of other Men.” (Locke 1988 [1689], II, para. 27)
    Land cultivated by the mind and hand or any material improved by the mind (invention) and or hand are equally valid as property. Property is that which the owner has the exclusive right to dispose of as he sees fit.
    Reply | Mark as read | Best of... | Permalink  
  • Posted by Herb7734 8 years, 10 months ago
    In the world of electronics, circuitry, software I am not qualified to utter a single word. I can, however, tell a bit of my experience with copyrights as a publisher. There has been confusion over who owns a copyright when someone is hired to provide a service for a company. If they are told what is wanted and given the concept that needs to be created, the copyright is the company's. If the creators of the concept bring it to the company to have them implement the creation, then the copyright does not belong to the company.
    Does this help at all?
    Reply | Mark as read | Best of... | Permalink  
    • Posted by MinorLiberator 8 years, 10 months ago
      I have not yet had time to read the article, and will hopefully contribute more specifically later, as there are a lot of good discussion points on all sides. (One of those days I wish this were the "real" Gulch, and I lived there.)

      But on this point I can say that in my experience as a software developer, either as a full-time employee or as a contractor, you always have to sign an agreement saying that any software you write that may have value as an "invention" (I'm not sure if that's the correct terminology. Let's just say if you write some software for a project that the company can resell or make money from), it belongs to the company.

      Your more general point may also make sense in some software situations I have had experience with: if I have an idea for a software product that is unique but would require a team to develop, i.e., too much to develop on my own, I might present the idea or design to a software development company (after getting a non-disclosure agreement) and if they agree on its potential value we may come to some sort of agreement to share the rights and develop jointly.
      Reply | Mark as read | Parent | Best of... | Permalink  
  • Posted by $ CBJ 8 years, 10 months ago
    I don’t see where Mossoff’s article addresses the issue of independent invention. History is replete with near-simultaneous inventions and discoveries, each of which involves Locke’s criteria of the creation of value from the application of human reason and labor.

    http://en.wikipedia.org/wiki/List_of_mul...

    Did John Locke ever address the property-rights implications of this issue?
    Reply | Mark as read | Best of... | Permalink  
    • Posted by dbhalling 8 years, 10 months ago
      First all the wiki article is mainly about scientific discoveries not inventions. Second of all the US had a system for determining who was the invention in near simultaneous inventions (there is no such thing as exact simultaneity) and one of the arguments for changing to a first to file system is that near simultaneous invention almost never occur, so the facts do not support that “they happen all the time.” Third the first person is the inventor, the second is not. This is completely fair. There are an infinite number of things to invent including improving things Any inventor with any skill has plenty of opportunities – the whole simultaneous inventor thing is the libertarian equivalent of the liberal zero-sum ideas in economics.

      There are often near simultaneous claims to property land, when property rights are properly defined as in the homestead act. Mining claims, hunting and fishing. The law has practical ways of sorting out the competing claims. This is not unique to patent law.
      Reply | Mark as read | Parent | Best of... | Permalink  
      • Comment hidden by post owner or admin, or due to low comment or member score. View Comment
      • Posted by $ WilliamShipley 8 years, 10 months ago
        While Einstein pretty much put an end to simultaneity, that still leaves the question of independent invention as a moral issue.

        If two people independently invent the same thing without reference to each others work, why is the first one morally entitled to own the work? In both cases the work is a product of human reason, neither of them benefited from the work of the other.

        While the law can award the rights to one of them, does that mean that the other had no moral claim on his work?
        Reply | Mark as read | Parent | Best of... | Permalink  
        • Posted by 8 years, 10 months ago
          ah, so it's not just software patents. Now you're jumping on the simultaneous invention bandwagon. There has been extensive research on this. It was determined to not be an issue. Within the infinite ways invention can and will happen, where would the statistical liklihood fall on that? But used as a fear-mongering argument, well, that is effective in weakening patent law.
          Reply | Mark as read | Parent | Best of... | Permalink  
          • Posted by $ WilliamShipley 8 years, 10 months ago
            The initial question by CBJ was about independent invention. DB's response addressed the simultaneous, but not the independent aspect of the issue. It is a legitimate question, "appeal to authority" doesn't provide an answer.

            If the patent is broadly written, it will cover a vast number of ways that something can be done. Copyright, on the other hand, covers the way that the person did it.
            Reply | Mark as read | Parent | Best of... | Permalink  
            • Posted by dbhalling 8 years, 10 months ago
              Yes I did but you purposely ignored the answer - second is not the inventor - PERIOD. If you are not the inventor, then you do not have property rights.
              Reply | Mark as read | Parent | Best of... | Permalink  
              • Posted by $ WilliamShipley 8 years, 10 months ago
                There are legal and moral issues are involved. From a legal issue, second is not the inventor, no question about it.

                From a moral perspective, I don't think the fact that someone else came up with the same thing removes your moral rights to the fruit of your labor.
                Reply | Mark as read | Parent | Best of... | Permalink  
                • Posted by 8 years, 10 months ago
                  except all you had to do was do a simple search. It is part of the inherent risk an inventor takes when looking for a claim to a property right for his invention. It happens every day that inventors who spent much time and capital are not granted a patent because there is existing prior art out there that came before. Fact of life. You have succeeded in fatiguing me william, I'm going to step away from the conversation. I had hoped we would have focused on the article and Locke. Another day.
                  Reply | Mark as read | Parent | Best of... | Permalink  
                  • Posted by Poplicola 8 years, 10 months ago
                    Searching for patent filings is anything but simple, it won't surface patents in progress that haven't yet issued, and it can be very expensive if you engage professionals who know how to properly translate real world concepts into the formal language of patent claims. Likewise, not all prior art is online and much of what is might be locked behind pay walls.
                    Reply | Mark as read | Parent | Best of... | Permalink  
                    • Posted by dbhalling 8 years, 10 months ago
                      Neither is search for property lines. Neither is reading code. Do you have a point?
                      Reply | Mark as read | Parent | Best of... | Permalink  
                      • Posted by $ WilliamShipley 8 years, 10 months ago
                        If I am buying a house, I can have a surveyor search for the property lines. It's a reasonable step to take. I however, know where the property is that I am checking.
                        It is insufficient to search for patents related to your general product. The nature of software is that an algorithm you use could be in common with a completely different product in a different field and might well be patented.
                        Reply | Mark as read | Parent | Best of... | Permalink  
                • -2
                  Posted by dbhalling 8 years, 10 months ago
                  From a moral perspective it is absolutely fair. Over and over again infringers pretend they invented something independently. They are thieves and you are supporting theft. That is immoral
                  Reply | Mark as read | Parent | Best of... | Permalink  
                  • Posted by $ WilliamShipley 8 years, 10 months ago
                    What you are saying is that no one independently duplicates an invention. This solves the moral issue by pretending it never happens.

                    I do agree that someone who lies about inventing independently is a thief.
                    Reply | Mark as read | Parent | Best of... | Permalink  
                    • -3
                      Posted by dbhalling 8 years, 10 months ago
                      I already showed it does not happen - Thieves always come up for an excuse for their theft.
                      Reply | Mark as read | Parent | Best of... | Permalink  
                      • Posted by $ WilliamShipley 8 years, 10 months ago
                        No, you have simply declared that it does not happen. That is not showing it.

                        How could you possibly claim that two people could not independently come up with the same idea? Note, I'm not saying simultaneously, simply that the second has no way of knowing that the first person has done so.

                        If the second person is unaware of the first person's creation than their creation is the fruit of their own labor and there is no moral reason to deprive them of it.

                        You are ignoring this possibility, which is probably not all that uncommon, because it undermines the moral support for patents. It then becomes a practical matter.

                        This is much the same as the argument between first to invent and first to file. I agree with you that first to invent is more just, but first to file is easier to administer as a practical matter.
                        Reply | Mark as read | Parent | Best of... | Permalink  
  • Posted by MinorLiberator 8 years, 10 months ago
    Thanks for posting, kh. Several reasons:

    Mainly, although I've only had time to skim the article, it looks great.

    Also, I've just recently re-read Locke's Second Treatise, and a modern application would be great to read and excellent timing.

    Finally, I've only recently run into some Libertarian friends who argue against IP rights. Huh???? I'm a software developer and have run into my share (thankfully a minority) of fellow developers who trumpet: "All software should be free!!!!" It's only recently I've heard of some Libertarians saying the equivalent. I'm looking forward to seeing that addressed.
    Reply | Mark as read | Best of... | Permalink  
    • Posted by dbhalling 8 years, 10 months ago
      Many libertarians adhere to the Austrian School of Economics, which bases property rights (as do many modern economists) on the utilitarian model of property rights. These libertarians are against any intellectual property, but they tend to focus on software.
      Reply | Mark as read | Parent | Best of... | Permalink  
    • Comment hidden by post owner or admin, or due to low comment or member score. View Comment
    • Posted by $ WilliamShipley 8 years, 10 months ago
      I am also a software developer and scratch my head over the "all software should be free" movement. It may be selfish but I would like to make a living using my creativity and not work at McDonalds and write code in my spare time.

      I rely on intellectual property protection for my product to allow me to maintain it and provide a living for the couple dozen people who work for me.
      Reply | Mark as read | Parent | Best of... | Permalink  
      • Posted by $ jdg 8 years, 10 months ago
        I also write software and want it protected, but only for a reasonable time. Once software, or any IP, is taken off the market, continued copyright protection achieves nothing except to prevent others from improving on your code. This prevents innovation rather than rewarding it, and therefore is unconstitutional (because it defeats the purpose, stated in the Constitution, that justifies the awarding of any IP rights and the resulting exception to freedom of speech).
        Reply | Mark as read | Parent | Best of... | Permalink  
      • Posted by 8 years, 10 months ago
        copyrights protect the "look and feel" of software. They do NOT protect the underlying invention. In that case, might as well be free. Your alternative is to hide your code. as a Trade secret. Please read the moral argument s for patents(in all areas, across all industries) in the article.
        Reply | Mark as read | Parent | Best of... | Permalink  
        • Comment hidden by post owner or admin, or due to low comment or member score. View Comment
        • Posted by $ WilliamShipley 8 years, 10 months ago
          You can copywrite more than 'look and feel'. Some programs have virtually no 'look and feel'. You have a sequence of instructions which produce an effect, you can copyright the sequence.

          I admit that it doesn't protect the underlying algorithms, it protects that particular implementation of the algorithm. The bulk of the work is coding and testing the algorithms, and if you copy the sequence of instructions you've violated the copyright.

          And, of course pretty much everyone hides their code as a trade secret. In fact it's very rare to release source code.

          As we've argued over this, I've examined my own mental process and I have to say that I don't really think of what I do as 'inventing', I feel it is much more akin to writing -- which you do as well. How would you patent part of your novel?

          Would you patent a plot? Any writer can tell you that plot is just the starting point. It's the way that the plot is implemented, how it hooks into the rest of the story that makes it yours. If I tell you the plot to a novel, you can't just go to your word processor and repeat it.

          Similarly, an algorithm, out of context of the rest of the program is like a plot idea. Reusable in lots of situations but the magic lies in the implementation.
          Reply | Mark as read | Parent | Best of... | Permalink  
          • Posted by dbhalling 8 years, 10 months ago
            Copyright only protects the artistic expression, not the utility..
            Reply | Mark as read | Parent | Best of... | Permalink  
            • Posted by $ jdg 8 years, 10 months ago
              It SHOULD only protect the artistic expression. In reality, the DMCA and its sequels protect all manner of illegitimate "rights", including the "right" to dictate how people use their copy of your product after they've bought and paid for it.
              Reply | Mark as read | Parent | Best of... | Permalink  
            • Posted by $ WilliamShipley 8 years, 10 months ago
              You cannot copy the program or a segment of the program and use it directly. You can, of course, write a brand new program to solve the same problem in a similar way but it will be a different creation than mine.
              Reply | Mark as read | Parent | Best of... | Permalink  
              • Posted by Poplicola 8 years, 10 months ago
                Actually, if a small bit of code in question can't be reasonably represented in any other way in the programming language it is written in, the legal concept of idea/expression merger comes into play and you might be able to legally copy that code fragment verbatim.
                Reply | Mark as read | Parent | Best of... | Permalink  
          • Posted by 8 years, 10 months ago
            this analogy fails. A story is not an invention. and software is not a story. It is not prose nor a plot. It is a logical structure for telling a machine what to do-specifically some thing that has computing power. As technology disrupts and changes, what is an invention remains the same. Software is the intellectual property of its inventor and should be protected. Please consider reading the article for the fundamental and moral basis for this argument.
            Reply | Mark as read | Parent | Best of... | Permalink  
            • Posted by $ WilliamShipley 8 years, 10 months ago
              I read the article twice before commenting. Please stop assuming that I don't know the issues involved. We all three passionately want to protect IP, my personal livelihood depends on that. We all think that it is essential to foster the growth of technology and encourage investment in developing new technology.

              What our dispute is over is whether patent protection is the best way to achieve that goal. My experience having watched the computer industry grow over the last forty years is that while it has always used copyright protection to safeguard IP, the growth of patent protection as a means of guarding IP in the last 20 years has slowed the progress and generated a barrier to entry that wasn't present during the years when Microsoft grew from a company selling a memory board to one of the largest companies in the world.

              Yes, one thing is not exactly like another. Architecture isn't prose or plot, yet it is protected by copyright. In modern times Howard Roark would have his designs protected by copyright, not by patent.

              I will comment that having written a very small amount of prose some 40 years ago, I recently began writing fiction again and was astonished at how similar the process was to working on a large program.
              Reply | Mark as read | Parent | Best of... | Permalink  
              • Posted by 8 years, 10 months ago
                "What our dispute is over is whether patent protection is the best way to achieve that goal."
                If this were just about the "issue" which would be procedural under the law, I would agree with you that this was an "issue." However, this is about principles of morality and natural rights.

                We will continue to argue over the definition of software, copyrights and patents.
                Reply | Mark as read | Parent | Best of... | Permalink  
                • Posted by $ WilliamShipley 8 years, 10 months ago
                  As will I. I welcome the discussion.

                  There is a rights discussion underlying this, of course. We both agree that the creator of IP has a right to his creation. The question is what types of creations qualify for protection.

                  If I look out the window and see the sun shining and exclaim "it's a wonderful day", this should not prevent you from independently looking out the window and making the same observation. Now, if I write a poem about that observation, then I should be able to copyright that.

                  To my mind, software patents are an attempt to prevent me from making the obvious conclusion that it is a beautiful day. In essence, it is an attempt to prevent other practitioners of the art from exercising their skills -- and that is, at least in my opinion, immoral.

                  (ed. I should have said "independently exercising their skills")
                  Reply | Mark as read | Parent | Best of... | Permalink  
        • Posted by $ WilliamShipley 8 years, 10 months ago
          Since you complained about my hijacking your discussion, you will note that this is the point that copyrights and patents entered this thread.

          You were responding to a post where I supported intellectual property rights without specifying the mechanism -- deliberately to avoid being provocative.
          Reply | Mark as read | Parent | Best of... | Permalink  
  • Posted by $ blarman 8 years, 10 months ago
    Thanks for the paper. It was a bit scholarly and I didn't have time to go through it as thoroughly as I would have liked, but I could sum the entire thing up in two words:

    Personal integrity

    Why are patents and copyrights an issue? Because individuals have chosen to ignore their own honesty in pursuit of money. In a society of strict personal integrity (honesty), no person would think about taking someone else's idea for their own use without compensating them for it. No one would present another's ideas as one's own or pretend to authorship of something he did not invent.
    Reply | Mark as read | Best of... | Permalink  
  • Posted by Owlsrayne 8 years, 10 months ago
    IP is no longer IP when you try to patent an invention or brand new process government corruption via the Patent Office come into play. Many years age when I work for my brothers' engineering company the same situation reared it's corrupt head. He came up with a simple solution to strip the liquid cargo from cargo holds of coastal oil tankers that had intank pumps. He ran it by the lawyers and they nixed the idea that it would cost to much money and time to get it through the Patent Office. So, the company built the components and installed the device on the customer's pumps in their ships. He many very little profit on it.
    That why so many inventors on You Tube desplay their creations there by making them public.
    Reply | Mark as read | Best of... | Permalink  
    • Posted by 8 years, 10 months ago
      it is expensive and time consuming. However, that was a corporate decision which involved many other factors you are not sharing here or maybe don't know. To blame the decision on the patent process is not logical because we don't have all of the factors, including if "the lawyers" made a bad decision. It can be a large investment with a significant return over years.[edited for grammar]
      Reply | Mark as read | Parent | Best of... | Permalink  
  • Posted by $ jdg 8 years, 10 months ago
    Even if you establish that some IP rights are justified, it's a long leap to assume that anything close to the IP scheme we have now is justified -- especially when talking about works whose copyright terms have been extended by decades AFTER they were produced. I don't think it's legitimate or constitutional ever to do that.
    Reply | Mark as read | Best of... | Permalink  
    • Posted by 8 years, 10 months ago
      it's funny. Locke thought so over 300 years ago. Please provide something other than a blanket statement. on what basis do you make this determination, jdg?
      Reply | Mark as read | Parent | Best of... | Permalink  
      • Posted by $ jdg 8 years, 10 months ago
        Constitution, Article I, Section 8, clause 8: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"
        Reply | Mark as read | Parent | Best of... | Permalink  
        • -1
          Posted by dbhalling 8 years, 10 months ago
          All property rights are time limited - dead people do not own anything. " exclusive Right" You clearly have no interest in property rights, have never thought about this subject with any depth, but you want to steal and justify it.
          Reply | Mark as read | Parent | Best of... | Permalink  
          • Posted by 8 years, 10 months ago
            how you can lose points for stating facts is beyond me. up is down on an objectivist website today
            Reply | Mark as read | Parent | Best of... | Permalink  
            • Posted by $ blarman 8 years, 10 months ago
              Read db's comment here for what it is: an ad hominem attack. jdg answered the question he was posed. db got offended by the answer and instead of asking a question for clarification, accused him (jdg) of intellectual laziness and/or stupidity. But he didn't stop there, going on to impugn his (jdg's) motives in a personal attack. That's absolutely worthy of a downvote. It's unacceptable behavior that you would call out on anyone else and be entirely justified for.
              Reply | Mark as read | Parent | Best of... | Permalink  
    • -1
      Posted by dbhalling 8 years, 10 months ago
      All IP rights are justified. You did not read the article and you are just a poser who has no principled idea of what property rights are.
      Reply | Mark as read | Parent | Best of... | Permalink  
      • Posted by 8 years, 10 months ago
        as usual there are emoters on these types of posts. and the material covered in the post is not even addressed. this is an Objectivist site. You will necessarily deal with Objectivist ideas, reason and logic. welcome to the dissonance. Look at the post. It was a reasoned and carefully researched paper. I have few comments on this post addressing the ethics. thanks, libertarians. short cut all you want. we will continue to provide careful, foundational values and principles.
        Reply | Mark as read | Parent | Best of... | Permalink  
  • Comment hidden by post owner or admin, or due to low comment or member score. View Comment
  • Posted by $ MichaelAarethun 8 years, 10 months ago
    Two Faces. One is the English invention of "What's yours is mine and what's mine is me own." I don't support that premise.

    The second and a rule of mine. I don''t copyright nor patent in any country that can't protect the copyright or patent. I believe the inventor of the internet failed in that respect as well as in abdicating any kind of right to claim moral values. But the porn industry sure did love Al Bore.

    Third the intellectual genesis is rarely the start point given the educational and genetic background but he or she IS the one with spark of creativity. I tend to weigh in on their side for that reason.

    Case in point a musician or an author. I pay for their value to my life. What I won't do is pay for it more than once regardless who invents the next medium. I paid for that when I bought the computer and the program. One time.

    Reply | Mark as read | Best of... | Permalink  

FORMATTING HELP

  • Comment hidden. Undo