Intellectual Property, Abstract v. Natural Right, Part III

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Patrick

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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  1. Avatar DensityDuck
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    ” In the specific instance of patent v. copyright law in the U.S., the legal protection for the means of reproduction (patents on, say, the DVD player) expires an order of magnitude earlier than the legal protection for works that are distributed via that medium.  There is a question of justice, here.”

    Does this mean that intellectual property is invalid, though?  Bad laws don’t invalidate the concepts driving those laws.  (Note also that your argument could be used to justify an extension of patents to the same length as copyrights.)

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    “There is a question of provenance, then; to what extent (if any) does the purchaser of the work owe the inventor should they expand upon the properties of the device?”

    That’s why they won’t give you a patent for improvements or modifications to an existing patent.

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    ” If I run a manufacturing plant and I have the only Widget Assembler 2000 I have a big advantage over other manufacturers of widgets; but the instant Bob the Inventor sells another Widget Assembler 2000 to my competitor, its utility to me is reduced significantly.”

    So?  If I know that Bob’s willing to sell a WA2000 to anyone who asks, thereby reducing my competitive advantage from owning one, then it’s incumbent on me to say something like “Bob, you might think this thing is worth ten billion dollars, but after you sell one to everyone in the world it’ll only make me a thousand dollars more per year, so I’m not willing to pay more than a thousand dollars for it”.  Alternatively, I might say “Bob, I’ll give you ten billion dollars, but for the WA2000 patent and not just a machine, because it’s only gonna make me ten billion dollars if I’m the only person that has one”. 

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    “Hegel regards sufficiently derivative works as products not of the original inventor, but of the individual who has apprehended the original product, applied their own will and effort, and created something new that they can call their own.  For some value of “sufficiently”.”

    And so does everyone else, so this isn’t particularly novel.

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    I’m curious as to what natural right Hegel refers to when he declares that property can be “owned”.  He talks about “putting a mark” on something; that’s all well and good, but what compels me to recognize that mark in a way that doesn’t apply to non-physical property?  What stops someone erasing my mark and putting up their own?Report

    • Avatar Patrick Cahalan in reply to DensityDuck
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      Does this mean that intellectual property is invalid, though?

      Conceptually, no.  It just means that there (may be) an implementation problem.

      That’s why they won’t give you a patent for improvements or modifications to an existing patent.

      Well, in theory.  In practice, they give out patents for “improvements or modifications to existing patents” all the time.  This is how drug manufacturers keep a patent going.  They also give out trivial patents, at least in the software biz.  Although, yes, that’s the theory.

      So?  If I know that Bob’s willing to sell a WA2000 to anyone who asks, thereby reducing my competitive advantage from owning one, then it’s incumbent on me to say something like “Bob, you might think this thing is worth ten billion dollars, but after you sell one to everyone in the world it’ll only make me a thousand dollars more per year, so I’m not willing to pay more than a thousand dollars for it”.  Alternatively, I might say “Bob, I’ll give you ten billion dollars, but for the WA2000 patent and not just a machine, because it’s only gonna make me ten billion dollars if I’m the only person that has one”.

      Hegel would say, the first case is a legitimate contract.  The second is not, because you can’t sell the patent, you can only sell the instance.  Bob can sell you the WA2000.  Bob could even conceivably sign a contract that says he won’t make another WA2000 for N years.  But Bob can’t sell you the patent to the WA2000.  When Bob dies, somebody else can make another WA2000.  Death breaks all contracts.

      I’m curious as to what natural right Hegel refers to when he declares that property can be “owned”.  He talks about “putting a mark” on something; that’s all well and good, but what compels me to recognize that mark in a way that doesn’t apply to non-physical property?  What stops someone erasing my mark and putting up their own?

      Well, Hegel isn’t referring to “natural” rights at all.  He’s not a natural rights theorist.  But this comes back to that passage I quoted back in Post II from Philosophy of Mind: ““It is a duty to possess things as property, i.e., to be as a person; which, in the relation of appearance, positing the reference to another person, develops itself into the duty of the other to respect my right (Hegel’s Philosophy of Mind § 486R).”

      You can’t erase my mark and replace it with my own (assuming mine is there justly in the first place) because you have to respect my right, just as I have to respect yours (or else there’s no civil society at all, really).


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      • Avatar DensityDuck in reply to Patrick Cahalan
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        says:

        “Hegel would say, the first case is a legitimate contract.  The second is not, because you can’t sell the patent, you can only sell the instance. ”

        Does Hegel actually say the latter, though?  I can’t find a copy of the original work, and none of your quotes appears to support this (in fact, some of your quotes directly contradict it.)

        Your quote of paragraph 69 would seem to say it all.  If owning a copy doesn’t give me the right to make additional copies, then clearly “the right to copy a thing” is a separable entity; and, as a separable entity, it can be owned (and that ownership can be transferred).  That the original inventor retains knowledge of how to copy the thing does not mean that they retain the right to copy the thing.

        “When Bob dies, somebody else can make another WA2000.  Death breaks all contracts.”

        Unless you’re operating under alloidal title, though, all land ownership is a contract with the government–and yet when a person dies, their land isn’t irrevocably transferred back to government ownership.  Sure, there are taxes based on the value, but those taxes can be paid by any means–and the land remains privately held during the time in which the tax is owed.

        “You can’t erase my mark and replace it with my own (assuming mine is there justly in the first place) because you have to respect my right, just as I have to respect yours (or else there’s no civil society at all, really).

        So how does that not apply to intellectual property?  Is it because Hegel doesn’t consider intellectual property to be “actual” property?  (And we’re back at “only real if you can touch it” again.)Report

        • Avatar Patrick Cahalan in reply to DensityDuck
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          says:

          Does Hegel actually say the latter, though?  I can’t find a copy of the original work, and none of your quotes appears to support this (in fact, some of your quotes directly contradict it.)

          Your quote of paragraph 69 would seem to say it all.  If owning a copy doesn’t give me the right to make additional copies, then clearly “the right to copy a thing” is a separable entity; and, as a separable entity, it can be owned (and that ownership can be transferred).

          No, you’re going from A to C.

          I can create something.  I can sell you a copy.  I retain the right to make the copies (point of fact, this isn’t gone through with rigor).  You gain the right to use the thing, and incorporate the thing (whatever it is) and learn/absorb the inner properties of it, and make derivative works.  But the “right” to make copies isn’t entirely separable – I can’t take what I’ve learned that enables me to make copies of the thing and give up ownership of that to you, because I can’t cut it out of my brain.

          If I “sell” the ability to make copies to you, then I’m abrogating my individual will’s inner properties of the spirit that have been changed, by necessity, by the act of creation of the thing.  This is basically analogous to slavery (for Hegel).

          Unless you’re operating under alloidal title, though, all land ownership is a contract with the government–and yet when a person dies, their land isn’t irrevocably transferred back to government ownership.

          Not precisely, land ownership is not a contract with the government.  That’s how it is recognized, legally, but (again, remember, this is all according to Hegel) my ownership of the land isn’t contractual.  Contracts take place when property has already been recognized.  Me selling land to you is contractual, and a matter of right and law.  Me owning it in the first place is a matter of right.  The government recognizing my ownership of it is a matter of right that should be reflected in law.  But it’s not a contract, per se.

          Is it because Hegel doesn’t consider intellectual property to be “actual” property?  (And we’re back at “only real if you can touch it” again.)

          Well, yes, Hegel doesn’t consider intellectual property to be (as in, “it is equivalent to”) actual property.  That’s because “actual” property is all external.  Intellectual property (“works of the mind” is a more accurate term, for Hegel) isn’t the same, because it is – at the same time – both external and internal.  In the ways in which it can be externalized, Hegel is okay with treating it as property (under contract).  In the ways in which it can’t be de-internalized, Hegel is *not* okay with treating it as property.  It’s in the middle part where things are fuzzy.Report

          • Avatar DensityDuck in reply to Patrick Cahalan
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            Can you give me a cite from the text where Hegel says that the right to make copies is inalienable?  Not interpretation or analysis, but what he actually wrote.

            You’re right that the knowledge contained in a particular piece of intellectual property can’t be sucked out of somebody’s mind, but–as I repeatedly declare–that’s not what this is about.  It’s about the right to reprocude that knowledge into the minds of other people.  And this is consistent with what you’ve quoted of Hegel’s work, which is why I keep asking for the original text that declares the right to copy inalienable.

            You are fixated on the idea that “the knowledge of how to do something cannot be removed”, but the existence of knowledge and its implementation into the physical world are different matters.  I might know how to break into a bank, but the existence of that knowledge in my mind does not make me a criminal.Report

            • Avatar Patrick Cahalan in reply to DensityDuck
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              Yes.  Paragraphs 66 and 67.  A PDF of a slightly different translation is here.

              Excerpt:

              67. The use of single products of my particular physical endowments
              or mental capacities I may hand over to others for a limited time,
              since, when a time limit is recognized, these products may be said to
              have an external relation to my genuine and total being. If I were to
              dispose of my whole time, made concrete in work, and all my activity, I
              would be giving up the essence of my productions. My whole activity
              and reality, in short, my personality, would be the property of another.Report

              • Avatar Patrick Cahalan in reply to Patrick Cahalan
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                says:

                Sorry; the original paper covered the two paragraphs on slavery not really at all; it was tangential to the rest of the essay.  But yes, Hegel pretty explicitly has finite time as a prerequisite for the transference of output (be it labor or products of the mind).

                He is not explicit, however, on how much time is legitimately “finite”.  From the context of the writing, I would make the case that he’s clearly limiting “finite” to “operationally finite for practical purposes” and certainly less than “my existing lifetime”.  But that’s my interpretation.

                He never comes out and says, “And the maximum years of the contract will number three, and three shall be their number.” or anything of that nature.Report

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