Intellectual Property, Abstract v. Natural Right, Part II


Patrick is a mid-40 year old geek with an undergraduate degree in mathematics and a master's degree in Information Systems. Nothing he says here has anything to do with the official position of his employer or any other institution.

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20 Responses

  1. Fnord says:

    I await further entries in this series, but based on this it seems that conceiving of copyright, etc, as intellectual “property” is perhaps flawed.Report

    • Patrick Cahalan in reply to Fnord says:

      Spoiler alert: see to decypher:

      Arvgure Urtry abe Ybpxr ernyyl unf n tbbq sbhaqngvba sbe vagryyrpghny cebcregl nf rvgure na nofgenpg evtug (Urtry) abe angheny evtug (Ybpxr). Ubjrire, lbh pna znxr pregnvayl gur pnfr gung gurve erfcrpgvir senzrjbexf obgu nyybj sbe fbzr vapneangvba bs gur vqrn, jvgu abgnoyr ahnaprf.

      Urtry, va cnegvphyne, jbhyq unir fbzr frevbhf vffhrf jvgu gur jnl jr punenpgrevmr vagryyrpghny cebcregl. N ohapu bs gur guvatf gung gur ynj pheeragyl rapbqrf nf npprcgnoyr hfrf bs VC haqre pbagenpg Urtry jbhyq syngyl ershfr gb fhccbeg nf gur rffragvny rdhvinyrag bs fynirel.Report

  2. Burt Likko says:

    In considering land as property, did Hegel give consideration to alloidial estates? (This is playful, not serious; allodial estates are not really much in play anymore.)

    More seriously, I can see the beginning of the idea versus expression concept so critical to copyright in Hegel’s distinguishing between the “inner property of the mind” and the “external product of the mind” which can be bought and sold.Report

    • Patrick Cahalan in reply to Burt Likko says:

      Student Likko has precognition. Tomorrow, I should have the next post up. The abdication of property, and contract.Report

    • Patrick Cahalan in reply to Burt Likko says:

      Oh, on the alloidial estates: not specifically. This is what he’s talking about (more or less) when he’s talking about entailed estates – sort of – in the sense that inheritance of the landed gentry wasn’t “true” ownership in the Hegelian sense, since typically all those lands came loaded with legal constraints on selling them or whatnot.

      I think the German/Prussian landed gentry history is probably sufficiently different from the English aristocracy that alloidial estates as a specific form weren’t mentioned.

      Of course, I had to look up “alloidial estates”, so I’m guessing based upon what I read in the last 30 minutes 🙂Report

  3. BlaiseP says:

    The concept of Property seems more properly addressed in law, not philosophy. I did some work for an IP lawyer in Arizona some while back who explained just how arbitrary some of these concepts become, especially in the realm of patents.Report

    • Patrick Cahalan in reply to BlaiseP says:

      Sure; in fact, further spoiler alert, a goodly portion of our legal concept of intellectual property law has grounding in either Hegel or Locke (IMO) although neither of them is the clear-cut progenitor and the parts that wound up in the legal code are (again, IMO) more an artifact of “those things that could be manipulated at the time for advantage of vested interests”, but that’s a whole ‘nuther party of posts.Report

      • BlaiseP in reply to Patrick Cahalan says:

        It took me a full day to get my head wrapped around the notion of Indefeasibility.   So much of the concept of Property revolves around what it Isn’t, not what it is.Report

      • BlaiseP in reply to Patrick Cahalan says:

        My problem, or more properly, my confused ratiocination on the subject, comes down to three different and troublesome definitions of Property, all of which afflict me in some form or other.

        Accounting has its own definitions for Assets and Capital Items.   Taxation demands to know who owns what.   Software, well, I let my lawyer and my clients work out what’s theirs, but I don’t think I’ve ever had a truly original idea for all the supposedly “original” work I’ve done.   It’s all been in the math and logic textbooks, or in Knuth.   The notion of patenting software just amuses me.   The world would be a hugely better place if GNU licenses applied everywhere.   There’s enough work to be done in the world without encumbering software with all this nonsensical legalese written by people who couldn’t code up Hello World in any language.Report

  4. DensityDuck says:

    I, too, am looking forward to what you think of abandonment or alienation of property, particular with respect to non-physical property.  I favor strong property rights, but I also think that many of the laws that attach to physical property–taxation on the value and adverse possession in particular–should be applied as well.Report

  5. DensityDuck says:

    I think that Hegel is falling victim to the same “if I can’t pick it up then it isn’t real” fallacy used by so many people discussing intellectual property issues.  I think that he’s heading in the right direction when he writes of “accomplishments of the mind” as being “objects of contract” (paraphrasing from Cahalan’s post), because I believe that this is the actual “property” that’s involved in intellectual property.  That is, what’s being protected is not the thing itself, but rather the ability to create contracts with that thing as the focus.  Indeed, the very term “copyright” tells us what it’s protecting.

    Unfortunately, Hegel then wanders off into the weeds of “how can you determine the value of an idea”, which is bunk, because all value is subjective.  Even the value of a physical object is subjective; I might not care about a pile of gravel on my yard–in fact, I’d pay to have it hauled away, so it’s of negative value to me–but you might see useful material for aggregate to underlay a foundation, or maybe you see a drainable substrate for a garden, or maybe the gravel is high in bauxite and you happen to own an aluminum foundry.  Defining property by the existence of value doesn’t work.

    Or, to bring together the informational and the physical, let’s talk about passage rights.  Nobody would deny that I have the right to restrict passage over my land–but why do I have that right?  Let’s hypothesize that Invisible Joe wants to cut across my yard as a shortcut to his destination, and he can do so without causing any damage or change to the yard, and (as he’s invisible) I wouldn’t even know he was doing it.  Do I still have the right to prevent him crossing my yard?  Hegel would probably say “yes, Invisible Joe realizes a benefit through interacting with your property, and this constitutes ‘use’, and as you are the acknowledged owner of the property you therefore have the right to control its use.”  But doesn’t this provide equal justification for copyright?  The person who obtained the intellectual property and allowed it to alter them certainly ‘used’ it; indeed, they might well have used it more fundamentally than Invisible Joe crossing my yard.Report

    • Patrick Cahalan in reply to DensityDuck says:

      I don’t think Hegel falls into the “if I can’t pick it up it’s not real” trap.  His nuance is “if you can’t give it up, it’s not exactly the same as something you *can* give up”.  I can give up a lump of gold, or even give up my claim to land, and give it *to* you.  I can’t exactly do the same thing with an invention of mine, because although I can give you the invention, and the plans, and even a promise not to make *that particular* invention, I can’t remove all of the principles of engineering that are embedded in my head that made it possible for me to invent the thing, nor can I prevent myself from using that knowledge again.  “How irreducible can such a product be?” is an important nuance to Hegel.

      Hegel is transactional, he’s not a natural law guy at all.  It’s not a matter of whether or not you have a natural right to property (we’ll get to that in Locke), it’s a matter of how two individuals (or, to a greater extent, an individual and civil society) can interact.Report

      • DensityDuck in reply to Patrick Cahalan says:

        ” I can give up a lump of gold, or even give up my claim to land, and give it *to* you.  I can’t exactly do the same thing with an invention of mine…”

        But you can give up your claim to the reproducibility of that invention.  And that’s what intellectual property is actually about.  People are correct when they say that me copying a song doesn’t deprive the copyright holder of the song, but possession of the song is the result of the infringement, rather than the infringement itself.

        ” I can’t remove all of the principles of engineering that are embedded in my head that made it possible for me to invent the thing, nor can I prevent myself from using that knowledge again.”

        Well…not using knowledge even though you possess it is the essence of the law, isn’t it?  I might know that I can smash a shopowner’s window with a brick, but we all agree that it’s against the law to do that.Report

  6. DensityDuck says:

    “[T]he scale and scope of the difference between patent and copyright law suggests qualitative differences between the two, and yet Hegel describes them without differentiation except in general terms.”

    You say “and yet”, implying that you think Hegel is wrong.  I agree with Hegel that an entity of information is, philosophically, the same no matter what shape it is.  A patent, a copyright, and a contract–and the deed to a particular piece of land, for that matter–all derive their authority from the same philosophical basis.Report

    • Patrick Cahalan in reply to DensityDuck says:

      That is not my implication (although I can see how you read it that way).  I’m just pointing out that there is a discrepancy between the Hegelian framework and the existing framework of intellectual property law.

      I’ll get to my idea after I get through Hegel and Locke.  Right now these posts are to provide descriptive background.Report