| | Bill Dwyer: Stephan asked, How does my making a drug with my own property initiate force against some other guy?
It doesn't, if you didn't steal the idea from him, but if you did steal it -- if you got the idea from him and reproduced the drug without his consent -- then you have initiated force against him, because you've expropriated his intellectual property. The question is whether there is IP. UsIng "stealing" presupposes there is, so is question-begging. And what do you mean, "got the idea from" him? We "get our ideas" from countless sources and inspirations, learning and acccumulated knowledge. Let's say I hear that everyone loves this "aspirin" that Bayer is selling. So I think, hmm, I bet I can make aspirin pills too, and make them better than Bayer. Did I "get the idea" from Bayer? Did I "steal" anything? I never read their patent, and never bought anything. I just *learn that* some people find taking this drug made from aspirin to be useful.
Whether an act constitutes theft or a violation of one's property rights depends on how one defines property. You cannot define property rights by reference to the initiation of force, if you define the initiation of force by reference to property rights. For example, suppose that I am standing on a plot of land, and you physically remove me from it against my will. Have you initiated force against me? That depends on whether or not you own the land. If you own it and ask me to leave, but I refuse, then you have every right to force me off your property. In that case your action constitutes the retaliatory use of force, not the initiation of force. But suppose that I am the owner of the land. In that case, your forcing me to leave would involve the initiation of force, not retaliatory force. Exactly. This is the very problem with IP: if your "ownership" of a given recipe *means that* you can stop me from using my own land--my own property and body--as I see fit, then it means you really co-own my land and body. But how did you come to co-own my land and body? I already fully owned them.
The same is true of intellectual property. If I create something on my own without stealing it from you, then even though you thought of it first, I still have a right to it, because I produced it on my own. But if I stole the idea from you, then I am violating your property rights. But this is question-begging, if you are assuming that my duplicating something I learn about, is stealing. Why is it stealing?
As Rand puts it, "An invention has to be embodied in a physical model before it can be patented; And, again, Ayn Rand doesn't know what she is talking about. You do NOT have to "reduce the invention to practice" -- embody it in a physical model -- before it can be patented. She is completely wrong. You can have an idea sitting at your desk, write it up, file it, and boom, you're done. Filing is called "constructive reduction to practice."
a story has to be written or printed. This is true, but so what?
But what the patent or copy right protects is not the physical object as such, but the idea which it embodies. It protects it *by giving the author/inventor partical ownership rights in other's already-owned property*. This is the very problem with it.
By forbidding an unauthorized reproduction of the object, PATENT LAW DOES NOT FORBID REPRODUCTION. It has nothing to do with reproduction. It does not assume that the "thief" as you call it has access to the original idea or invented object. This is copyright law. Laymen who think you can use a copyright-like concept to implement a patent system seem to have no clue as to what they are talking about.
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; Let me make sure I understand you here: are you saying that there is a property right in the value of an object? Is this what you are saying?
Stephan, you don't deny someone the right to determine the conditions on which he is willing to sell his product, do you? Isn't that all a patent or copyright does? Absolutely not. Patent and copyright are NOT based on the idea of contract. If they were, they could not bind third parties.
No one is forced to apply for a patent or copyright; one may give one's idea away, if one chooses. Are you sure about this? How do you "give away" the copyright that federal law automatically grants you in something? To give an analogy--you have a right to apply for social security when you retire, and you have a right to sue someone for racial discrmination. Both of these rights are illegitimate, of coures, but you are granted them by the feds. How would you "give them away"? Is there an official bureau of rights-relinquishment that I don't know about? In fact, as far as I know, it's not easy to "give away" your copyright--that is, to dedicate something to the public domain. Federal law GIVES YOU a copyright as soon as you fix an original work of authorship in a tangible medium of expression. No registration, filing, or even coypright notice is needed. If you do nothing, you have a copyright. How do you stop this? Don't put a notice? Don't register? That doesn't matter. What if you put a notice, "I renounce my copyright"--? So what? This is ineffective--there is no contract, no consideration.
But if one want's to establish the condition that it may only be used privately and not for commercial reproduction, then a patent or copyright helps to make that condition public knowledge. A condition is a condition of a bilateral contract. But patent and copyright bind third parties, even those who had no notice.
I do think Rand is wrong to deny an inventor the right to his invention, just because someone else happened to invent the same thing and to beat him to the patent office by a few minutes. He has a right to it if he produced it, even if someone else did so before he did. This is a good critique of Rand, but I am not sure if you realize how devastating this little exception would be to the patent system. There is a reason that most pro-patent types would froth at the mouth and fight you tooth and nail for suggesting such a change to the patent system. You would get accused of hating small inventors and innovation, etc.--the same kind of stuff I get from your side.
Suppose you insert into patent law an exception for prior users, or independent inventors. So what's going to happen? If I had a company I would tell all my engineers to NEVER read the patent database; I would establish a policy to prohibit this. I would spend money (wasted!) to have a verifiable "clean room" procedure for innovations, similar to what is often done now in the copyright/software context (where the coders program in isolation, with no access to other material, so that if the program they produce has some similarities to an existing product, they can prove they didn't have "access" to it, and did not "reproduce" it--this is a defense in copyright, but not patent, b/c copyright infringement requires some kind of reproduction of another's work, and thus proof that there was "access" to it). So you would have everyone running around covering their eyes, trying NOT to learn what others have done, out of fear of being unable to prove they independently invented something. All so they could preserve a defense against patent infringement. The patent proponents would hate this measure b/c it would basically gut the patent system (albeit, at a huge deadweight cost of all these companies having to cultivate intentional ignorance and establish clean room procedures). Moreover, the patent system has two main (utilitarian) purposes: the encourage invention disclosure (the filing of a patent application that becomes public), and also to encourage innovation by giving you a limited monopoly on it. If people are trying to AVOID reading the patent database so as to establish the lack-of-access/lack-of-copying defense you propose, then that defeats the primary purpose of the patent system; there is no way in hell this proposal would ever pass, or is in any way compatible with the patent system.
What I am saying is that the idea of an independent inventor defense is contrary to the entire idea of a patent system. So in recognizing the need for this defense, I think you are starting to see how problematic any real-world patent system really is.
|
|
