Intellectual Property

[Emsworth]

Person A may obtain land through first possession, but he may nevertheless transfer it to Person B, though Person B was not the first to possess it.

As Blackstone explains, the transfer of property may be considered as "an abandoning of the thing by the present owner, and an immediate successive occupancy of the same by the new proprietor. [...] If I agree to part with an acre of my land to Titius, the deed of conveyance is an evidence of my intending to abandon the property, and Titius being the only or first man acquainted with such my intention, immediately steps in and seizes the vacant possession."

But when A abandons his intellectual property in an idea by death or otherwise, it is impossible for B to "discover" the same idea and thereby take possession of it.

[A18]

That is not the usual, philosophical justification for intellectual property. The usual justification is that if I have the rights to something, it is a natural corollary that I may transfer those rights to another person.

In any event, that only responds to my reductio ad absurdum. You did not respond to my defense of the distinction I made between 'intellectual property' and physical property.

[Emsworth]

When I say that someone has the right of property over some item, I am not simply saying that he is entitled to use that item. I am saying that he is entitled to exclusively use that item. Undoubtedly, this is an abstraction that includes the activities not only of the owner, but also of others. Yet, I see nothing wrong with such a view.

If I own a lawnmower, then I am entitled to use it exclusively. Even when I am not using it, my neighbor may not borrow it without my consent. If he takes the lawnmower, he is by no means lessening my use of it, as I have no intention of using it at this particular instant. Yet, in this hypothetical, my property rights--my exclusive dominion over the lawnmower--would have been violated.

Thus, I would submit that the concept of ownership includes not only the rights of the owner, but also limitations upon the activities of the rest of mankind.

Also, as to your point regarding the patentability of fire: It could be argued, if different individuals make independent discoveries of the same idea, each individual shares in the intellectual property rights. As Lysander Spooner explains, "If two men produce the same invention, each has an equal right  to it; because each has an equal right to the fruits of his labor."

If I write down a simple sentence (e.g., "Abraham Lincoln was a tyrant"), and it so happens that someone else wrote down the same sentence yesterday, then the previous author should not be able to sue me for copyright violation. It is possible that I have copied his sentence, but clearly, it is most probable that I came up with the sentence independently.

On the other hand, if I write a whole book, and it so happens that the book matches another work word for word, then the previous author should be able to sue me for copyright violation. It is possible that I (by sheer chance) wrote exactly the same words independently, but, again, it is most probable that I copied the work.

A like distinction can exist when it comes to inventions. If one person discovers something so simple as fire, and another person does the same, then the presumption should be that the discoveries were independent. On the other hand, if one person invents a very complex machine, and another person does the same, then the presumption should be that the latter inventor copied from the former.

[A18]

The relevant factor is whether or not your use of the thing in question impairs another person's ability to use it. In the case of a lawnmower, it most certainly does. In the case of an idea, this is in no sense true. Your abstraction obscures the latter fact. The analogy breaks down on the issue of scarcity, then.

Lysander Spooner believed in perpetual patents, correct?