Property Rights and Original Property

Ayn Rand said that you do not have a right to own an object, but rather a right to the consequence of possessing it.

"Bear in mind that the right to property is a right to action, like all the others: it is not the right to an object, but to the action and the consequences of producing or earning that object. It is not a guarantee that a man will earn any property, but only a guarantee that he will own it if he earns it. It is the right to gain, to keep, to use and to dispose of material values." "Man's Rights"

I think that that is wrong on several grounds, beginning with the concept of original property. Original property is newly invented or newly discovered. It had no previous owner. In fact, it did not exist – or its existence was not perceived – until the original inventor created it or the original discoverer found it. How do we recognize such property? What rights does the inventor or discoverer hold? Are some or all of those those objective, absolute, or conditional?

A sailor finds an uninhabited island. Can she claim the whole thing for herself? An astronaut lands on an asteroid, a moon, or a planet. Can she claim the whole thing for herself? A physicist discovers a new form of energy. Can she claim it all for herself?

A radio hacker finds that 1100 KHz AM is owned by a broadcast company, can she use a "chopper" to parcel out nanoscopic slices of the wavelength for herself, given that her presence will never be detected and her presence will never interfere with their existing use of the wavelength? It could be argued that the 1100 KHz frequency already belongs to someone. However, the property is actually the amplitude modulated (AM) use of that frequency. In theory, frequency modulated (FM) and phase modulated broadcasts are both possible on 1100 KHz without interference. They are just not technologically useful today. This is not new.

(Actually, the property status is limited in space, as well. That, too, is a different problem, caused by a misperception of the potentials in technology. One of the nice features of 550 to 176 meter wavelengths is the way the waves bounce off the ionosphere. That was discovered as a by-product, entertaining teenagers who listened to far-away stations. It could have been commercially exploited.)

Thomas Edison was a telegraph hacker. He figured out how to multiplex and quadriplex messages on the same wire. Granted that the wire was someone’s property, it could, nonetheless have been leased out to different people using different blocks of time-passage on the same wire. Also, in theory, it could have evolved that the telegraph wires would have been the broadcast source for what we call radio. When a direct current circuit is closed and opened, a magnetic field is created and collapsed. That is an alternating field. That field could have been used to transmit information, as in fact, the “ether” was used by actual radio (initially called “wireless”). So, you could have paid the telegraph company its tariff for sending messages, but have no concern for the literal transmission but been sending “open” and “close” signals to create a carrier wave for transmissions of your own. Who would have owned that ether?

A real life example of that is the way hackers and hobbyists in the 1980s (beginning in 1977 with the Hayes Smartmodem) used the voicegrade lines of the telephone company to send their data for their bulletin board systems. AT&T fought it on many grounds, but the Modified Final Judgment of 1984 effectively opened up telephone to the technologies that were known but under-exploited, such as fax and "radio-phone" i.e., cellular telephone. This culminated 25 years later in the auctioning off of "new" spectra for "new" modes of communication. The governments of the USA and Australia engaged both traditional and "Nash" auctions. The process was exactly consonant with Ayn Rand's thesis in "Property Status of the Airwaves." The problem is that the government did not actually own the "airwaves" in the first place and had no right to auction them off. Many technologies allow use of a wavelength or frequency, some of them simulateously without interference. Thus the definition of the frequency or wavelength per se as property was wrongly conceived.

Lasers can carry messages. It could have come that a network of lasers made of ruby crystals doped with chromium and pumped by xenon flash would have been a continental system, point to point, with relays and amplifiers every 20 miles or so. Then, someone with a YAG (yttrium aluminum garnet) laser could have a network whose beams crossed those in space but without interference because the beams are of different frequencies. Thus, no violation of property rights would have occurred.

Original property brings a special challenge to the law because no previous legislation anticipated it. Ayn Rand attempted to delineate the proper role of government in her essay "Property Status of the Airwaves." Twenty years later, the Electronic Frontier Foundation was created to bring law and order to cyberspace. Rand did not stray far from the mainstream. Her essay never questioned the Federal Communications Commission - though she excoriated it in other writings - or the law that created it with power to rule by decree. The EFF has been fighting a war of attrition while bunkered within the First Amendment. The next new invention will leave them to defend an old technology without new ideas.

I believe that rather than looking to legislation or administration, these problems are best settled in courts. The English system of justice works because of what American conservatives complain about as "judicial activism." The other way is the Continental theory of "civil law" in which the legislature spells out the law in detail and the courts only enforce it. In other words, in the English system, the court fits the law to the case, making case law, whereas in the Continental system, the court fits the case to the law. (In American today, the courts do both. The court of original jurisdiction applies the law. Appellate courts test the law.) The English system is better at protecting individual rights because those are the implicit foundation for judging the law and for making new rulings that create precedents.

(Edited by Michael E. Marotta on 10/31, 3:12pm)

Post 1

Friday, October 31, 2014 - 4:43pm

Marotta quoted Ayn Rand:

"Bear in mind that the right to property is a right to action, like all the others: it is not the right to an object, but to the action and the consequences of producing or earning that object. It is not a guarantee that a man will earn any property, but only a guarantee that he will own it if he earns it. It is the right to gain, to keep, to use and to dispose of material values." "Man's Rights"

And then wrote:

I think that that is wrong on several grounds, beginning with the concept of original property. Original property is newly invented or newly discovered. It had no previous owner. In fact, it did not exist – or its existence was not perceived – until the original inventor created it or the original discoverer found it. How do we recognize such property? What rights does the inventor or discoverer hold? Are some or all of those those objective, absolute, or conditional?

Rand's point was that rights are rights to actions. If I purchase an automobile, that is an action. The action involves paying the agreed upon price and taking possesion. Those are actions. The use of that autombile is made of actions. If I later sell that automobile, that is an action.

We should always think of "property" as a bundle of rights held by a person (or people) relative to the actions involving an object (or objects). If I had leased that automobile I would have aquired a smaller set of rights - for example, I wouldn't have the right to sell it.

I don't know why Marotta is saying that Rand's description of property rights would exclude origonal property. She would have been very clear that Atlas Shrugged was newly created and that she held rights to that original work. And that she acquired her rights through the creative effort that led to this new work.

We recognize categories of such new things with descriptive laws: Patent law, Copywrite law, etc. The courts interpret those laws, and apply them to circumstances. What the court creates, when it does its job properly, is case law that increases the understandings of the law, not inventions of law as if each court were its own legislative, administrative and judicial branch - all rolled into one.

Technology brings new creations, and those give birth to new kinds of uses (actions). The purpose of government is to protect rights. To do that it has to put together the laws it can to define these new kinds of creations and the new kinds of uses that will relate to just ownership. Justice, as a concept in the creation of law is one that draws on a base moral code (e.g., one that is individualistic, egoistic, and values productivity, for example) and it will require the principles of objective law. This is what good legistlators would be doing if they weren't the kind of politicians we have instead. And it is an evolutionary process where the laws are improved over time. Again, the prevailing cultural standards will tend to drive the laws towards greater protection of individual rights, or towards the violation of those rights.

Courts need a starting point of established law and the law must have juridictional and hierarchical characteristics and it must have stability over time. There has to be a balance between the functions of making the law, and interpreting and applying the law. That is where case law should come from. And there must be that monoploy of one set of statutory laws for a given jurisdiction otherwise there is anarchy and the violation of individual rights. The play back and forth between the judicial responsibility to law, which specifically excludes making law, and the legislative or administrative functions which specifically exclude interpreting the law as other than written is a very good thing for providing stability and reducing the rate of government growth.

Post 2

Saturday, November 1, 2014 - 1:19am

It may be that I miss Rand's point. It might be subtle that you do not own an object but only the right to actions attendant to the object. However, a geologist collects rocks. I fail to see that she has no right to a stone, but only the rights to pick the stone up, and carry it home, and place it on a shelf - and no right to the shelf or to the home per se, but only the right to buy it, live in it, and sell it, and even burn it down, but never to own it qua it.

SW: I don't know why Marotta is saying that Rand's description of property rights would exclude origonal property. She would have been very clear that Atlas Shrugged was newly created and that she held rights to that original work. And that she acquired her rights through the creative effort that led to this new work.

I am not saying that at all. I say that by her statement (and Wolfer's reinforcement of it), you have no right to a telegraph per se, but only the right to create, use, and sell the telegraph, no right to the process of extracting oil, but only the right to actions associated with the process. Perhaps I just misunderstand.

On the Galt's Gulch Online board, in response to the sailor who discovers an island, khalling agreed with Rand that the sailor has no right to the island per se unless she farms it, builds a harbor, etc. khalling is a good Objectivist who has invested significantly in Atlas Shrugged productions. I think that she is wrong, but I recognize that she is working from the same premises we all share, rather than some other (mysticist-altruist-collectivist) foundation.

(General discussion and that comment.) My point is that original property can take many forms. It need not be an "object." It could be a process or an idea or a new perception.

Wolfer is correct that original property calls the legislative process into question. I disagree with his claim that the legislature should be charged with inventing and perfecting new laws in response to new inventions that create new forms of property. My thesis is that those inventions and discoveries argue against legislation and beg for case law. If objectively established, courts would be the proper forum. In The Constitution of Galt's Gulch, Wolf Devoon pointed out that courts are necessary specifically not just because so many complaints are new but that the defenses are more often novel. We accept as a given that government consists of three branches, legislative, administrative, and judicial; that the legislature invents laws, the administrator enforces them, and violators are brought to court to establish their guilt, as if this were metaphysically true.

I agree with the substantial assertion of property rights. ("The right to life is the source of all rights—and the right to property is their only implementation. Without property rights, no other rights are possible. Since man has to sustain his life by his own effort, the man who has no right to the product of his effort has no means to sustain his life. The man who produces while others dispose of his product, is a slave.

Bear in mind that the right to property is a right to action, like all the others: it is not the right to an object, but to the action and the consequences of producing or earning that object. It is not a guarantee that a man will earn any property, but only a guarantee that he will own it if he earns it. It is the right to gain, to keep, to use and to dispose of material values." -- Man's Rights) But the bolded sentences seem to stand in contradiction to the rest.

Creating original property is really the capitalist mode of survival - not the trucking about of that which previously existed, though that is important. Original property suggests that govenment begin with the courts, not with the legislature. The administrators would be officers of the courts. The legistlature would be the end of the line, codifying that which has been established.

(Edited by Michael E. Marotta on 11/01, 1:42am)

Post 3

Saturday, November 1, 2014 - 3:39am

A “right” is a moral principle defining and sanctioning a man’s freedom of action in a social context.
Rand

Note that a right isn't a material thing, or intrinsic in some aspect of material reality, but rather a type of moral principle. A type of moral principle that arises in a social context and that defines and sanctions a freedom of action. It is the statement of those actions that can be taken "by right" rather than by permission.

Go from there to those actions that relate to something we commonly refer to as property. Now we have a moral principle that defines and sanctions a man's freedom of action (in a social context) relative to an something. It is one of the possible relationships between a man and an object (material or not). But not any relationship. It is a specific kind of relationship - a moral relationship. A moral relationship relative to other men that only refers to some or all of the actions that are morally 'owned' by the person relative to that object.

To say we "own" something is just a popular conceptual short-hand, and where it might be an adequate statement for most circumstances, it isn't adequate in attempting to explain the moral or legal nature of property rights. If you think deeply enough you can see that absent of the actions one might take with a rock, or an automobile or a novel, the word "own" is meaningless. "Ownership" only acquires meaning from an understanding of what that entitles one to do, and/or what it prohibits others from doing.

Having a right to a stone is meaningless unless we describe what "having a right to a stone" means in actions. "Having" a stone doesn't say anything about what I could do with it. Attempting to talk about property rights without actions is to engage in floating abstractions. And worse, it strips away the purpose of rights. The purpose of rights are so that we can have those boundaries needed to make a stable social context best suited for man's life qua man to flourish. It is how we can separate those actions that arise from choice from those that violate choice.

Marotta has the example of a "...geologist [who] collects rocks. And says:

I fail to see that she has no right to a stone, but only the rights to pick the stone up, and carry it home, and place it on a shelf - and no right to the shelf or to the home per se, but only the right to buy it, live in it, and sell it, and even burn it down, but never to own it qua it.

The term "own" should be seen as a bundle of rights that include the rights to most or all of the actions common to a kind of object, including the right to sell it. The geologist, in those terms, owns her shelf and owns her home. But if we want to be more accurate, she has a bundle of rights relative to the shelf and to the home. If her home is a rented apartment, people would be less likely to say she "owns" the apartment, but they would agree that she has the right to entry, to exclude entry to others, perhaps to sublet, perhaps the right to remodel, etc.

Marotta claims that Rand's statement regarding rights contains contradictions, but it is an assertion that he fails to justify. Perhaps he will point out the particular words he claims make up the contradiction and how he thinks they form a contradiction.
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Marotta says:

We accept as a given that government consists of three branches, legislative, administrative, and judicial; that the legislature invents laws, the administrator enforces them, and violators are brought to court to establish their guilt, as if this were metaphysically true.

Strangely, it is those who want to discard this very useful separation of powers who attempt to discredit it by pointing out the obvious fact that they aren't metaphysical facts. That is all strawman argument. Why not say that these divisions of government aren't oil paintings, or indigestion, or potted plants - those statements would also be true, but not any more useful or in context. I put my socks on before putting on my shoes, but that too isn't mandated by metaphysical facts, but rather by my purposes.
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As to the claim that we only need courts, and no laws other than case law, that is just another attempt to create a defacto anarchy and has no substance. What would the court use to judge a case if there have never been any laws? Well, they would have to make up law in every instance. And what about a different court - maybe in a different city? It wouldn't have to render any decisions that matched, in any way, what the other courts ruled. After all there are no laws defining how a court rules, nor any laws that make court rulings enforcable, nor an adminstration to aid enforcement. And without laws, where is the military - a department that each court would have? So, would each court be its own fiefdom - making rulings, and using some hired guns to enforce those rulings? Anarchy always devolves into warring tribes.

Post 4

Saturday, November 1, 2014 - 8:00pm

Michael quoted Ayn Rand: "Bear in mind that the right to property is a right to action, like all the others: it is not the right to an object, but to the action and the consequences of producing or earning that object. It is not a guarantee that a man will earn any property, but only a guarantee that he will own it if he earns it. It is the right to gain, to keep, to use and to dispose of material values." "Man's Rights"

He replied: "I think that that is wrong on several grounds, beginning with the concept of original property. Original property is newly invented or newly discovered. It had no previous owner. In fact, it did not exist – or its existence was not perceived – until the original inventor created it or the original discoverer found it. How do we recognize such property? What rights does the inventor or discoverer hold? Are some or all of those those objective, absolute, or conditional?"

Like Steve, I was puzzled by Michael's response. There is nothing in Rand's statement that excludes original property. In fact, it is perfectly suited to original property. In order to acquire original property, one must act to transform an unowned resource into a usable value a la the Homestead Act. When Rand says that one does not have a right to an object, what she is saying is that one does not have a right to it irrespective of whether one has acted to produce or earn the object. In her statement she acknowledges "that he will own it if he earns it."

(Edited by William Dwyer on 11/02, 9:22am)

Post 5

Monday, November 3, 2014 - 9:06pm

First, Rand's requirements argue against any "buy and hold" investment strategy. When we were kids, in 1955, the Quaker Oats Company gave away 21 million square inches of the Yukon via deeds in cereal boxes. As it played out, all of that went back to the government of Canada because no one paid their taxes on their square inches. But the principle as applied here raises serious questions. If you are given title to land - never mind the taxes; we are, after all, Objectivists - why do you have to do anything to keep it? And who can take it from you? And on what basis?

Second, as in the Homesteading model offered for the airwaves, Rand assumed that she knew enough to declare what the "property" in question was. In that case, it was certain "wavelengths" in the ether. But the problem was more complicated than that on several grounds. I outlined some of those other transmission modes in Post Zero above; and more exist. Widen the conceptual framework and it is easy to understand that potentially very many forms of property exist which most of us may never perceive. Yet, Rand insisted that the government should manage the distribution by the same model that granted property rights to farmers on the frontier.

Time-based property rights are contrary to our understanding about land ownership. Two or more people cannot own the same plot of ground at different times in the same continuum - Monday, Thursday, and Saturday; or dawn to dusk. They could lease it but only from the one sole owner (partnership, etc.) who legally holds it continuously in time. But even the telegraph allowed "chopping" and radio certainly does. Electronic steganography is a form of cryptography, i.e., a form of information transfer. So, the technology needed a different understanding of property rights, rather than being force fitted to our ideas about land.

Moreover, those "things" discussed above are not "objects." We can accept Rand's general use of that word to mean "whatever" i.e., a process, a procedure, a perception.

"Bear in mind that the right to property is a right to action, like all the others: it is not the right to an object, but to the action and the consequences of producing or earning that object. It is not a guarantee that a man will earn any property, but only a guarantee that he will own it if he earns it. It is the right to gain, to keep, to use and to dispose of material values." - "Man's Rights"
"Any material element or resource which, in order to become of use or value to men, requires the application of human knowledge and effort, should be private property—by the right of those who apply the knowledge and effort." -- "Property Status of the Airwaves"

Rand says that you have no right to the "thing" (process, procedure, perception) but ony to its uses. How do you separate the one from the other? How does such a discussion not take on medieval language about whether "red" is intrinsic to the "apple"? We now understand color differently, so we do not argue in those terms. Similarly, if we recognize that to own some "thing" is to "act" upon it, then no other action is needed. Discovering or inventing some "thing" (process, perception, etc.) is enough to own it. You do not need to perform any other actions.

Like Steve, I was puzzled by Michael's response. There is nothing in Rand's statement that excludes original property.

My concern is in the other direction: original property calls Rand's statement into question.

(Edited by Michael E. Marotta on 11/03, 9:07pm)

Post 6

Tuesday, November 4, 2014 - 2:21am

Marotta wrote:

Rand's requirements argue against any "buy and hold" investment strategy.

I have seen no such argument from Rand.
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When we were kids, in 1955, the Quaker Oats Company gave away 21 million square inches of the Yukon via deeds in cereal boxes. ... the principle as applied here raises serious questions. If you are given title to land ... why do you have to do anything to keep it?

You don't have to do anything to be morally entitled to keep it. It was earned by the free market exchange of money for the cerial box.
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... in the Homesteading model offered for the airwaves, Rand assumed that she knew enough to declare what the "property" in question was. In that case, it was certain "wavelengths" in the ether. But the problem was more complicated than that on several grounds. I outlined some of those other transmission modes in Post Zero above; and more exist. Widen the conceptual framework and it is easy to understand that potentially very many forms of property exist which most of us may never perceive. Yet, Rand insisted that the government should manage the distribution by the same model that granted property rights to farmers on the frontier.

More Marotta attacks on Rand.... like that's something new. Rand did know enough to make those statements at that time. Given the context of the technology of that time, it made sense to define the bundle of rights as they were defined. They were actions (e.g., broadcasting on a given frequency with the equipment of that time). The word "potential" tells what is wrong with Marotta trying to criticize Rand for not being able to foresee all the possible technological developments that might create new kinds of property.

And Rand was not an advocate of government management of anything but the protection of individual rights.

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Marotta says that two or more people cannot "own" the same plot of ground at different time in the same continuum. Not true. Any number of people can choose to structure "ownership" of a piece of land so that it can be "time shared" anyway they want. It is nothing more than an agreement arrived at in a free market where the right to specific actions relative to a specific piece of land are assigned to specific people - there is no problem with assigning time boundaries.

I can say that I "own" the land my house is on and that is accurate enough for common usage. But for a discussion of what property rights are, it is inadequate. I own the right to some actions regarding my land (I signed a covenant that granted me specific actions, and specifically denied me other actions).

We 'own' the rights to certain actions relative to the 'thing.' When that is understood, there are fewer misunderstandings arising out of the thought that property rights could apply to anything other than actions.

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Rand says that you have no right to the "thing" (process, procedure, perception) but ony to its uses. How do you separate the one from the other?

Simple. There is a car, and there is selling the car. One is the "thing" and the other is the use. What you can't do is have 'ownership' that doesn't reference rights to actions.

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... if we recognize that to own some "thing" is to "act" upon it, then no other action is needed.

Wrong. "Ownership" is about a bundle of rights, rights are those actions we can take without permission. This formulation shows that rights arise out of our volitional nature. And it addresses the purpose of rights - to separate what we can do without choice from those things we need to get permission to do which is required to live peacefully in a social setting. Marotta's formulation is fuzzy and circular and gets in the way of creating a complex bundle of rights.

Post 7

Wednesday, November 5, 2014 - 5:07am

Under the "homesteading" theory of property rights in land, two people cannot file deeds on the same property but at different times. They can own it jointly (or severally) and do with it as they please. However, the authority that protects rights will not recognize the situation I described where A owns the land some days and B owns it on others, or A owns it some hours and B owns it other hours. We could do things that way, but we do not.

I posited that because the radio technology of the early 20th century did allow exactly that kind of time-dependent property.

The word "potential" tells what is wrong with Marotta trying to criticize Rand for not being able to foresee all the possible technological developments that might create new kinds of property.

It was not a personal attack, but only a point that her essay "The Property Status of the Airwaves" failed to account for problems that already were being argued in the first third of the 20th century when the FCC was created. When America entered World War One, President Wilson issued an executive order to seize all radio broadcast equipment and all radio receiving sets. After the War, the Army, Navy, and General Electric created the Radio Corporation of America. The monopoly was broken up by the Justice Department in 1930 (Wikipedia here). In 1933, Edwin Armstrong invented FM and opened his own broadcast station. FM was a totally new property. Moreover, FM depends on a range of frequencies, not a single wavelength. So, the problem was more complex than the one Rand addressed. And it is exactly such a broad and abstract problem beyond the moment of the news headlines that a philosopher is supposed to consider.

Marotta wrote:
Rand's requirements argue against any "buy and hold" investment strategy.
I have seen no such argument from Rand.

I did not say that she offered the argument. I said that argument derives logiclaly from the requirements that she set down as premises.

Post 8

Wednesday, November 5, 2014 - 3:43pm