The idea that ideas can be property is patently ridiculous

May 18, 2017 § 29 Comments

One of the interesting things about patents (unless the law has changed since I filed mine a couple decades ago) is that the invention must be “reduced to practice” before you can even apply for one: you have to have a concrete working implementation before the patent office will even accept your application. And once a patent is granted, what the patent holder actually receives – the patent itself – is a security entitling the holder of the patent to enforceable commercial exclusivity within the jurisdiction of the patent authority.

Similar things can be said about other forms of intellectual property.

So IP doesn’t count in favor of the contention that ideas can be property. It counts against that contention.

As usual liberal modernity requires you to studiously avert your gaze once actual reality starts to come into view.

§ 29 Responses to The idea that ideas can be property is patently ridiculous

  • “And once a patent is granted, what the patent holder actually receives – the patent itself – is a security entitling the holder of the patent to enforceable commercial exclusivity within the jurisdiction of the patent authority.”

    Interesting. That is a concept I apply to faith, to God, we are His intellectual property. We are real enough, as is all of creation. God has, “enforceable commercial exclusivity,” so to speak. So things, ideas, that convert people into commodities are a violation of God’s intellectual property rights. Abortion,usury, slavery, porn, whatever schemes we come up with that violate the patent that says we are made in the image of God.

    It can be a tricky concept in the modern world, because we are really resistant to the idea of people as property, but in the ancient world it was known you were going to be someone’s property,and that meant being under their authority and protection, provision, who you belonged to. Ideas are not property and people are not ideas either.

  • TomD says:

    What’s even more amusing is when you consider things like bitcoin et al; your “property” there is a number (a large number, but a number nonetheless), which perhaps can be said to be unownable.

  • Step2 says:

    Zippy,
    When you obtain the patent on ridiculous let me know so I won’t be paradoxically stealing from you. Oddly, if I lived in a different country I wouldn’t be stealing your exclusive property.

    In your telling a figment of nothing that has been reduced to practice (a strange transformation to be sure) plus a sovereign controlled marketplace produces a commercial exclusivity for a real property. Question: How does a sovereign give exclusive rights to the practice of nothing?

  • Zippy says:

    Step2:

    In your telling a figment of nothing that has been reduced to practice (a strange transformation to be sure) plus a sovereign controlled marketplace produces a commercial exclusivity for a real property. Question: How does a sovereign give exclusive rights to the practice of nothing?

    You seem to be having trouble distinguishing conceptually between “ideas are not the sort of thing which can be property” and “ideas are nothing”. There is a sense in which even nothing isn’t quite nothing, because if it were nothing in that sense we wouldn’t even be able to talk about it.

    If it helps, consider Donald Trump and Harry Potter; and further consider what a speaker who says “Donald Trump exists but Harry Potter doesn’t” actually means by that statement.

    Incapacity to grasp the difference between reality and fiction is central to the modern project. I appreciate your assistance in demonstrating as much to my readership.

  • Zippy says:

    TomD:

    What’s even more amusing is when you consider things like bitcoin et al; your “property” there is a number (a large number, but a number nonetheless), which perhaps can be said to be unownable.

    Bitcoin is an authenticated record of wasted computation, physically recorded in some form of computer memory.

    Computer memory (of all kinds: sequential-logic electronics/optics/magnetics in general) is like a book, but much easier to duplicate of course. Symbols of some sort are recorded on a physical substrate.

    It is ridiculously easy make digitally-perfect copies of those symbols to a different physical substrate. But different physical copies are still each real in themselves and physically distinct.

  • Step2 says:

    Zippy,
    The difference between the idea of (owning) a cow and an actual (owning of a) cow is not a matter of moving along some continuum of compromise with a possible happy medium. Being and non-being are absolutely distinct.

    The correct bit in parenthesis makes it absurd, right? There is never a process of acquiring, developing, or constructing a bit of property, it exists moment to moment as only an idea (non-being) or actual property (being).

    If it helps, consider Donald Trump and Harry Potter; and further consider what a speaker who says “Donald Trump exists but Harry Potter doesn’t” actually means by that statement.

    All they mean is that the Orange Menace isn’t a fictional person although he fits certain tropes for the horror and tragedy genre. They cannot mean Trump has greater emotional maturity than the fictional character. And again, by saying Harry Potter doesn’t exist the speaker is suggesting there is actually nothing rather than a fictional something.

    Incapacity to grasp the difference between reality and fiction is central to the modern project.

    I haven’t claimed there is no difference. What I have claimed is there are some ideas that when pursued can become actual property. You’ve indirectly ceded this claim, the main point of contention is that you think only the sovereign’s exclusive market access makes the “practice of the idea” real property while I think the original idea is property because it belongs to a person or group of persons and can be traded.

  • Zippy says:

    Step2:

    What I have claimed is there are some ideas that when pursued can become actual property.

    Then you are shadow boxing. Nobody has denied that a man can conceive of a table and then build an actual table, and that this actual table can be property.

    What has been denied is that the idea of a table can be property.

  • Purple Tortoise says:

    Zippy,

    Sort of off topic, but I wonder what you think about the increasing practice of selling a physical object (such as a phone or a tractor) with embedded software that is not sold but merely licensed so that the manufacturer can continue to control what the customer does with the object — for example, requiring the customer to return to the manufacturer for all repairs under the threat of “bricking” the object. I suppose one could view it as some sort of indefinite lease agreement in which the customer never truly owns the object but the seller never intends to receive the object back. But it seems that the rationale is that an idea (software) embedded in the object is property that the customer does not own.

  • Zippy says:

    Purple Tortoise:

    I posted a bit of a ramble on that subject here… and that’s about all I’ve got for now. At the very least it strikes me as pretty hinky to pretend that the “purchasers” of such products actually “own” what they have “purchased”.

  • Purple Tortoise says:

    Thanks, Zippy.

    Here’s an illustration that came to my mind. Let’s say you buy some purely hardware device. As owner, you can use it, or you can resell it, or you can even beat it to pieces with a sledgehammer, but in this current day of digital rights management what you cannot do is take it apart in order to figure out how it works. In the past, there was no prohibition against figuring out how a device worked, only against using that knowledge to make more and sell them if the device was still under patent. But now we seem to be moving toward a regime where knowledge of how the device works is regarded as property, and to gain that knowledge through investigation of a device you purchased is stealing and punishable by the magistrate. As you say, it seems pretty hinky, but I’m trying to develop a better foundation for why that notion is true or false.

  • Zippy says:

    Purple Tortoise:

    If the sovereign is thought of as owner of marketplaces, then his legitimate power when it comes to IP is in regulating transactions but not in preventing teardowns, modifications, making DIY versions, etc for personal use. If the sovereign is thought of as just owning everything and everyone than this limit wouldn’t apply.

    So the basic question becomes: is IP a securitization of the sovereign’s ownership of marketplaces, or is it a securitization of the sovereign’s ownership of everything, including us?

    I think any reality-grounded understanding of sovereignty will be a fractal of the family: it starts with thinking of subjects as the king’s children, if you will. I don’t have an overarching theory, but a father doesn’t “own” his children in the sense of them being merely resources.

  • Mike T says:

    Most of those modern expansions of IP law are justified as a sort of preemptive assault on people who might violate the rights granted by the security. I think we have a demonstration here that is hinting at an implied limiting factor on authority: the violation, potential or real, cannot justify the authority wielding power that is either the proper domain of another authority or outside of what his own scope permits in the name of the common good.

    I don’t have a complete theory of how to describe/limit it, but as I see the issue here, the biggest problem is that the sovereign is engaging in a highly consequentialist view of his own authority that takes the view “it is better to damn a thousand men to get a handful of guilty men” than the other way.

  • Purple Tortoise says:

    I’m fine with the sovereign regulating marketplaces — after all, patents and copyrights originally did not go to primary creators but instead were merely monopolies granted by the king.

    And I think Mike T is correct that much of digital rights management was originally directed towards retarding the ability to make and distribute copies, though licensing now seems to be morphing into an attempt to create a permanent revenue stream from customers. That is, instead of a customer making a one-time tangible transaction of exchanging money for information (as represented by software), the vendor wants the customer to pay a recurring fee for the temporary licensing of intangible “intellectual property”.

    I am a confessional Protestant, and one idea that has developed in my circles is that different areas are governed by different legitimate and overlapping authorities (though not absolute), all under God. So the sovereign can compel a man to military service, but he can’t compel the man’s wife to sexual service. The church can excommunicate the unrepentant sinner, but cannot administer criminal punishment. Parents have authority to direct the upbringing of their children, but the state may intervene in cases of severe abuse and neglect. Yet I have not seen so far how this is worked out in the context of IP and personal use of property, which seems to be a new development in history.

  • Zippy says:

    Purple Tortoise:

    We papists would probably refer to the natural distribution of authority as “subsidiarity,” but it sounds like pretty much the same thing.

    Complex software is brand new from a historical perspective, so the turf battles over how it intersects with property will likely go on for a long time. Using software to force permaleases on people who would rather buy and actually own products is part of that larger turf war.

    I have a pretty strong intuition that this particular sort of rent seeking is morally wrong, but I don’t have a set of well developed arguments. (And often enough the process of developing arguments will alter my perspective).

  • Mike T says:

    The IP hawks pretend that if we allowed customers to actually own their goods it would imperil the whole system based on artificial scarcity. However, I think the real issue here is that we don’t have effective IP laws to actually go after the real violations.

    A common argument is that forcing open the drivers to hardware would reveal a lot of trade secrets, but it stands to reason that a better balancing act would be to legally distinguish between an open source developer making an open source driver available and a competitor utilizing novel innovations derived from that code to skimp on R&D. From a public purpose perspective, they are completely different. One is expanding the ability of users to use a product that is sanctioned for sale in the sovereign’s marketplace, the other is trying to undermine the sovereign’s authority to securitize novel innovations.

  • Mike T says:

    One of the goals of the DMCA was to force additional consumption for the benefit of the IP holders. You see that at play with the anti-circumvention clause. The No Electronic Theft Act already criminalizes the act of copying goods you have no title to copy. However, the DMCA criminalizes the act of simply backing up a DVD you own or using a tool like Handbrake to turn it into a MP4 that can go on a tablet. The idea is that sure, you did buy that Blu-Ray disc for $20, but that doesn’t entitle you to actually watch it on the device of your choosing.

    My sense is that this is an immoral use of sovereign authority. Coercing people to consume goods that they don’t need, particularly in a case like this where what they just bought is already good enough and able to serve that need, really just is a use of authority to enrich moneyed interests at the expense of the public. I’m not sure you can really defend that use of authority in any relation to an objective common good.

  • Zippy says:

    We had a bit of a knock-down drag out here and at some other blogs probably ten years ago on a similar subject. Some company – “Clean Flicks” IIRC – had made software that could play back movies in a censored form. You still had to buy the original movie, but this product would censor out objectionable parts automatically. Think a “DVD filtering” analog to net filtering.

    The movie rights holders sued and won, putting Clean Flicks out of business.

    Now, I really think that the sovereign should not side with the Hollywood types on this. But I believe it was Step2 who pointed out that this was what the law required, and compliance doesn’t demand that we do evil.

    So both are true: the sovereign really shouldn’t have done that but, given that he has, we should comply. There is a lot of daylight between “the sovereign shouldn’t do X” and “we are justified in noncompliance if the sovereign does X.”

  • Mike T says:

    There is a lot of daylight between “the sovereign shouldn’t do X” and “we are justified in noncompliance if the sovereign does X.

    Non-compliance is a tricky thing. Let’s say that the sovereign declared it illegal to update your cell phone’s software, and it is clear that the sovereign does not care about his subjects getting harmed by malware and other factors. The sovereign shouldn’t do that, and I don’t think most people would be wrong to disobey that order because it would be similar to the sovereign ordering them to not lock their front door at night. Sorry, but king or not, you don’t have a moral right to tell me I must make it substantially easier to be prey to criminals, particularly when you formally disavow any particular duty to protect me and my property**.

    Obviously, armed resistance is not acceptable here, nor is an attitude that the sovereign’s authority is compromised by this one act. However, I don’t think the sovereign could actually expect people to obey a very imprudent order that subjects them to harm “just because.”

    **The Supreme Court has ruled that no one has a right to police protection. That means in jurisdictions like NYC the Supreme Court has effectively told the people that they must obey the state, but the state has no particular duty to accept responsibility for the self-provided security it has outlawed under pain of imprisonment. It is like declawing a cat and throwing it outside into the woods and claiming you had no part in it starving to death or being unable to fight back.

  • Mike T says:

    In the case you described, I don’t think non-compliance is possible without turning the conflict hot. So there, prudence would err on the side of compliance for the sake of the public peace. It’s not worth a shooting war over clean DVDs. However, I don’t think the sovereign could actually expect the customers to just destroy the software and stop using their copies.

  • Purple Tortoise says:

    Zippy:

    I wouldn’t be surprised if what I articulated was pretty close to subsidiarity since it likely has a common source. I’ve only read a tiny fraction of the Zippy corpus on liberalism, but however the Reformed confessions of the 16th and 17th centuries differed from Trent (which I do not minimize at all), I doubt that they could be characterized as “liberal”.

  • Zippy says:

    Mike T:

    Non-compliance is a tricky thing.

    Compliance/noncompliance can be both ambiguous and tricky, especially in its emanations and penumbras. But often enough the law is pretty clear. If the sovereign outlaws the sale of a product that you already own (e.g. the Clean Flicks software) but hasn’t said that owners have to turn in or destroy the product, there isn’t any reason to turn it in and destroy it. It also doesn’t mean that you can’t create your own software to do the job and even open source that software, or make edited copies of the movies yourself for personal use. Traditionally IP restrictions have been restrictions on the sale of market-exclusive products, not on mere possession. Forbidding possession is usually a criminal matter (e.g. some drugs, some weapons, etc) not a matter of violating IP-granted market exclusivity.

    There is of course a turf war over this, and it will be a very bad thing indeed if IP (as opposed to criminal law) becomes a kind of warrant/security capable of ex post facto forbidding mere retention of property legally acquired and reasonable use thereof.

    There are often ways around the letter of the law when the sovereign does something stupid or immoral, and this provides one of the natural feedback mechanisms in the regulation of authority. In effect, the fact that positivism is false is a natural authority-regulator.

    However, disobeying a direct and definite instruction from a superior, when that command does not require you yourself to do evil, is a different matter. Positivism is false, but that doesn’t mean that no definite conclusions are possible. Postmodernism is just the mirror image of positivism, not its epistemic rival.

  • Step2 says:

    Zippy,
    FWIW I found the Clean Flicks post..

  • Zippy says:

    Step2:

    Good times.

  • Purple Tortoise says:

    Zippy:

    Somewhat off-topic, but have you written on how Christians can fulfill their obligation to follow positive law in our profoundly antinomian society? The ancient Medes and Persians, noble pagans that they were, held such a high view of law that not even the king could revoke it. So it was a simple matter to understand the law and whether to obey it or obey God. But in our present day we have millions of laws, many of which are apparently not intended to be enforced, unless the powers that be see a need to hammer down on someone. It is reported that the average American commits three felonies a day due to ignorance of the law or ambiguities in the law, and many policies and laws are ignored at all levels because to strictly follow them all would bring society grinding to a halt. Lawmakers seem to pass many laws as political grandstanding and give little thought to clarity and practicality. So how can the Christian navigate this treacherous terrain?

    On a related note, the mid-17th century catechism of my church provides an extended application of the 5th Commandment (I think the 4th Commandment to you papists). Reading through the duties of superiors and inferiors is like viewing Bizzaroland because the world envisaged by the catechism is completely different from the world we live in. One key presupposition of the catechism seems to be that authority is personally exercised, whereas in our society authority is diffused away through law and bureaucracy such that no one is really in charge and no one is really responsible.

  • Zippy says:

    Purple Tortoise:

    So how can the Christian navigate this treacherous terrain?

    I have no special insight other than to note (as basically a true-by-definition platitude) that the virtuous will do so differently from the vicious. The mild personal implication here is to focus primarily on the morality of our own acts, and to avoid distractions from that first and most crucial of considerations; which is all anyone can really do anyway.

    One key presupposition of the catechism seems to be that authority is personally exercised, whereas in our society authority is diffused away through law and bureaucracy such that no one is really in charge and no one is really responsible.

    Yes, by turning authority over to inhuman procedures we still get authority, discrimination, restriction on freedom, etc; but we get in an unaccountable, sociopathic form.

    The main differences between liberal regimes and authoritarian[*] regimes are that the former exercise authority sociopathically while pretending not to, and last indefinitely; whereas the rule of particular men comes with the manifest responsibility of those particular men for their choices, and is naturally limited by their life spans.

    [*] In the real sense of rule by particular identified men with personal authority, not in the sense of regimes which supposedly inauthentically profess liberal principles “but” don’t do what the differently liberal critic thinks they ought to do if only their liberal commitments were ‘authentic’.

  • Purple Tortoise says:

    Zippy:

    According to the catechism, one duty of superiors is to care for the spiritual and moral welfare of their inferiors, but you can imagine how quickly that would be stopped in our society if anyone tried to do that outside of an explicitly religious organization with a purely religious mission. In thinking about how I could possibly fulfill my duties in this area, I came to the conclusion that I wasn’t really a superior but merely a higher-ranking slave. This seems odd to modern ears since we’re repeatedly told how free we are, but I don’t see how it can be otherwise in the face of “anti-discrimination” laws.

    Acting morally is also not so simple when the senses are dulled by being a cog in a giant bureaucracy (as we all are to a lesser or greater extent). Since responsibility is diffused away, we can cooperate with immoral actions merely by following standard laws and policies. Here is where ignorance of history fails us. I’ve heard people in my church rationalize going along with the dictates of immoral policies on the grounds that Daniel was righteous even as a high-ranking official in the pagan Babylonian empire. They imagine that Daniel was a paper-pushing bureaucrat legally bound to follow the multitudinous regulations of the Babylonian policies and procedures manual and thereby inevitably cooperating with evil and idolatrous actions. What they don’t realize is that policies and procedures manuals are a very recent development and officials in prior times were given wide latitude to conduct themselves as they saw fit and that it would never be necessary for Daniel to participate in evil and idolatry while carrying out his duties as an overseer.

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