Recently, re-listening to the 1991 lecture "Ayn Rand, Intellectual Property Rights, and Human Liberty," by Objectivist attorney Murray Franck, I was struck by one of quotes given in defense of IP. During his lecture, Franck reads (most of) the following quote approvingly:

"When we come to weigh the rights of the several sorts of property which can be held by man, and in this judgment take into consideration only the absolute question of justice, leaving out the limitations of expediency and prejudice, it will be clearly seen that intellectual property is after all the only absolute possession in the world. The man who brings out of the nothingness the child of his thoughts has rights therein which cannot belong to any other sort of property. Land or chattels are pre-existing in some form, and the rights therein are limited in many ways, and are held in the great service of the world, but the inventor of a book or other contrivance of thought holds his property, as a god holds it, by right of creation; with his silence or inaction the sustenance and advance of millions yet to be may vanish into the great darkness again. His brain has brought the seed out of the infinite, planted it in good soil, tended it with the care that only the sower can feel. Surely the world should not deny him a share of the increase he has brought about, and if he, giving the reversion of his property for all time to his race, is granted the product of his creation for half a score of years, he should surely be secured against being plundered by the law as well as by the lawless."

Franck says the quote is from one "Forvold Solberg" [sp?], "a former register of copyrights", but my google-fu indicates that the author is one Nathan Shaler, Professor of paleontology and geology at Harvard from 1869-1906, in his Thoughts on the Nature of Intellectual Property, and Its Importance to the State (1878). It's perhaps a bit ironic that the author quoted approvingly by an Objectivist in support of IP was a racist, one-time Creationist, and author of a book about some idea's "importance to the state"!

In any event, the latter part of the quote is extremely utilitarian: "the world" should give the innovator or creator "a share" of the wealth he contributes... by giving him a monopoly on it for about ten ("half a score") years.

The first part--about how inventors are "like gods" calls to mind Rand's embarrassing justification for smoking--that it's symbolic of fire "tamed" at man's fingertips.

The quote also emphasizes very explicitly that Randians and other IP advocates believe "creation" is an independent source of rights: you hold your intellectual creation like a god, "by right of creation."

I note also that Franck says in the lecture that copyrights should survive in perpetuity.

Incidentally, I graduated from law school in 1991, the year of this lecture, and listened to it soon after, about the time I was beginning to practice IP law (1993 or so). I had recently morphed from an initial flirtation with Objectivism to Rothbardian anarcho-libertarianism. I was very interested in this lecture, since I had long struggled with Rand's weak justification of intellectual property--which was especially troubling since she claimed that "patents are the heart and core of property rights." The lecture failed to convince me; I kept searching for better justifications of IP than I'd seen from Randians. After shooting blanks for a few years, I finally came to the realization that I was unable to find a justification for IP ... because it's unjustifiable and contrary to individual rights. By 1995 I had reached my current views on IP, as can be seen in this exchange between me, Franck, and David Kelley, in the IOS Journal: Murray I. Franck, "Intellectual Property Rights: Are Intangibles True Property," IOS Journal 5, no. 1 (April 1995); Kinsella, Letter on Intellectual Property Rights, IOS Journal 5, no. 2 (June 1995), pp. 12-13; David Kelley, "Response to Kinsella," IOS Journal 5, no. 2 (June 1995), p. 13; and Murray I. Franck, "Intellectual and Personality Property," IOS Journal 5, no. 3 September 1995), p. 7 (all of these except the first are here; I find only this bad link to Franck's first piece).

I find it all quite agreeable except the 'grant of monopoly for 10 years'.

Where the heck did that monopoly spring from?

If creators want reward for their labour, to realise the value of their intellectual property (clearly theirs), they should seek it in a free market. Why the heck does the state feel they should interfere, especially as by doing so they suspend the liberty of the public, and prevent a free market?

All that needs protecting is the creator's IP - from theft/copying. Why the heck should the state also reward the creator with a completely uncalled for market monopoly? Even a monopoly lasting one day would be too long.

I've always thought the most bizarre thing about Objectivism and Rand's philosophy is its complete ignorance of economics (Alan Greenspan's article on gold excepted, but he wasn't an architect of Objectivism). Economics is one of the most important subjects underlying any type of social philosophy, and for the Objectivists to have overlooked it beggars belief, but they did.

The ambiguity in attribution is because Thorvald Solberg (then Register of Copyrights) quoted Shaler in a 1936 presentation to Congress. That (or a law review article citing it) is probably where Franck got the quote.

"All that needs protecting is the creator's IP - from theft/copying. Why the heck should the state also reward the creator with a completely uncalled for market monopoly"

If something cannot be copied, you have a monopoly on that design, presumably.

I notice that the post and all the comments fall all over themselves regarding individual rights and IP and yet they missed the central point of Murray Franck's presentation. Intellectual property is an absolute right. No one can force a creator to reveal the creator's knowledge. Thus, if a creator creates, as an example, a power source that would provide cheap, unlimited power and the creator, not the guy next door, not someone who believes in libertarian "values," and if the creator believes the creator would be insufficiently rewarded for the creator's invention, then the creator needs only keep the invention to the creator's self and the knowledge may be lost for years, decades or centuries (to this day the exact nature of "Greek Fire," invented more than two millenia ago, remains a mystery).

Now, you might argue, "But the creator makes no money by keeping the invention to his or herself." Let us flip that around. Most inventors are poor marketers. That is one of the values of a patent. The patent helps keep the inventor's rights while the inventor attempts to sell the invention. However, if they inventor has no rights once the invention is revealed, then all inventors, especially independent inventors (who hold about 1/3 of all patents), will no longer bother. Why should they? They lose their rights at the moment of revelation. Since they do not believe they will be able to make one penny on their invention, there is no value to revealing the invention. This would be the state that would exist without patents. Perhaps as much as 80% or 90% of the knowledge revealed in patents would never be formally revealed to the world.

Further, this disincentivation applies to any activity that requires significant capital investment. If you have four manufacturers of a heavily capitalized product, which is the safer route? Copy the most successful existing design or spend tens of millions on a better design that will be immediately copied anyway, eliminating possibility of return on investment? Yes, the best existing design will be innovated to death, but new designs can never be financially justified.

I have seen a silly argument that claims that spending money on another design is a waste. There are abundant examples that we did not get it right the first time, or even the second time. Tires are a great example. We spent tens of millions of dollars making better tires, and the first belted radials had issues. More tens of millions, more generations of designs, and now we know how to make them so that they are safe and durable.

At the end of the day, intellectual property is a choice of society (well, actually it is a choice of virtually all societies). Does intellectual property limit the rights of an individual for a period of time? Yes, it does.

On the other hand, there is a catch-22 situation. The elimination of legal protection of intellectual property would increase the property rights of individuals, but it would simultaneously eliminate the very property for which the rights were sought. Fundamentally, eliminate legal protection of intellectual property and a significant portion of that property would never be created anyway. Is it better to eventually have the absolute freedom to use 1,000,000 items, or the immediate freedom to use 1,000 items, and the 1,000,000 items may never occur, or occurs many generations from now. This is the choice we make.

"I notice that the post and all the comments fall all over themselves regarding individual rights and IP and yet they missed the central point of Murray Franck's presentation."

I notice that you tried to sneak a pro-patent post under the radar rather dishonestly by posting to a very old thread.

Nice try, Lonnie.

"Intellectual property is an absolute right."

Nonsense. Ridiculous nonsense.

"[incoherent babbling] to this day the exact nature of "Greek Fire," invented more than two millenia ago, remains a mystery"

Baloney. It was basically just burning petroleum.

"That is one of the values of a patent. The patent helps keep the inventor's rights while the inventor attempts to sell the invention."

What "rights" are these? If you mean "intellectual property rights", you are begging the question.

"However, if they inventor has no rights once the invention is revealed, then all inventors, especially independent inventors (who hold about 1/3 of all patents), will no longer bother."

A frequently made and highly questionable assumption, which is, unfortunately, quite commonly repeated uncritically and without examination by the Lonnie E. Holders of this world.

"Since they do not believe they will be able to make one penny on their invention"

If true, only so because they are not apparently thinking rationally. It takes time to copy something and mass-produce a knockoff, particularly when you lack the expertise the original inventor possesses. During that time, the original inventor has a first-mover advantage. And he can continue to improve his product, thus keeping a step ahead of the competition and extending the duration of that advantage. No patents required. Or desired.

"there is no value to revealing the invention. This would be the state that would exist without patents."

Only if we accept your flawed premises and dubious logic.

"Perhaps as much as 80% or 90% of the knowledge revealed in patents would never be formally revealed to the world."

There's another couple of figures that Lonnie should have left floating in the toilet-bowl. Or better yet, flushed.

My guess is that the actual number is a lot closer to 0%.

"Further, this disincentivation applies to any activity that requires significant capital investment."

Nonsense, or nobody would ever build a new factory for manufacturing any non-patented commodity. Yet such factories do get built from time to time.

"will be immediately copied anyway, eliminating possibility of return on investment?"

"Immediately" copied is complete hogwash -- copying a physical device takes time, often lots of it.

And see above for the debunking of the ludicrous nonsense "eliminating possibility of return on investment".

Or just see Boldrin & Levine.

"Yes, the best existing design will be innovated to death, but new designs can never be financially justified."

Balderdash.

"I have seen a silly argument that claims that spending money on another design is a waste. There are abundant examples that we did not get it right the first time, or even the second time."

So?

Patent abolition will, if anything, favor incremental development over "big monolithic development effort" R&D.

"On the other hand, there is a catch-22 situation. The elimination of legal protection of intellectual property would increase the property rights of individuals, but it would simultaneously eliminate the very property for which the rights were sought."

Hogwash.

"Fundamentally, eliminate legal protection of intellectual property and a significant portion of that property would never be created anyway."

Bollocks.

"Is it better to eventually have the absolute freedom to use 1,000,000 items, or the immediate freedom to use 1,000 items, and the 1,000,000 items may never occur, or occurs many generations from now. This is the choice we make."

Balloonjuice!