The Law of Intellectual Property : Part 1, Chapter 2, Section 14

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1855

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(1808 - 1887) ~ Individualist Anarchist and Unitarian Christian Abolitionist : The greatest natural rights thinker of the 19th century was the American lawyer and maverick individualist Lysander Spooner. He responded to the tumultuous events of his era, including the Panic of 1837 and the Civil War, with pamphlets about natural rights, slavery, money, trial by jury and other timely subjects. (From : Jim Powell Bio.)
• "Again, the doctrine that the minority ought to submit to the will of the majority proceeds, not upon the principle that government is formed by voluntary association and for an agreed purpose on the part of all who contribute to its support, but upon the presumption that all government must be practically a state of war and plunder between opposing parties..." (From : "Free Political Institutions," by Lysander Spooner.)
• "The doctrine that the majority have a right to rule proceeds upon the principle that minorities have no right in the government; for certainly the minority cannot be said to have any rights in a government so long as the majority alone determine what their rights shall be." (From : "Free Political Institutions," by Lysander Spooner.)
• "There is no particle of truth in the notion that the majority have a right to rule, or exercise arbitrary power over, the minority simply because the former are more numerous than the latter. Two men have no more natural right to rule one than one has to rule two." (From : "Free Political Institutions," by Lysander Spooner.)

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Part 1, Chapter 2, Section 14

SECTION XIV.

Objection Fourteenth.

Another objection is, that after the author of an idea has once made it known to others, it is impossible for him ever to recover the exclusive possession of it.

This objection is of no validity—and why? Because it is wholly unnecessary that he should have the exclusive possession of his idea, in order to practically exercise his right to the exclusive use of it.

The objection assumes that it is practically impossible for a man to exercise his right to the "exclusive use" of an idea, unless he also have the exclusive possession of it.

The objection rests solely on that assumption. Yet such an assumption is a self-evident absurdity; for the exclusive possession of an idea is not, in practice, at all necessary to the exclusive use of it. An idea, unlike a corporeal commodity, can be as fully and completely used, by a single individual, when it is possessed by all the world, in common with himself, as when it is possessed by himself alone. Their possession of it, jointly with himself, offers no natural impediment whatever to his exclusive use of it. The practical exercise of his right of exclusive use, is, therefore, in no manner whatever, naturally contingent or dependent upon his exclusive possession. And this fact alone is self-evidently an ample and unanswerable reason why, in law, it is wholly unnecessary that he should retain his exclusive possession, in order to retain the right of exclusive use.

Here, no doubt, the argument, on this point, might be safely left. But, perhaps, some further illustration of it may be allowable.

The law never makes any requirements, that are practically unnecessary to the exercise of one's rights. The only reason, why a man's right to the exclusive use of a corporeal commodity, is ever, in law, dependent upon his right to the exclusive possession of it, is, that the practical exercise of his exclusive right of use, is naturally and necessarily dependent on his exclusive possession of the commodity. It is naturally impossible that he can use it—that is, the whole of it, fully and completely—unless he have exclusive possession of it. But it is wholly otherwise in the case of an idea, which, from its immateriality, can be as fully and completely used, by a single individual, when it is possessed by all other men, in common with himself, as when possessed by himself alone.

Whenever the practical exercise of the exclusive right of use, is, naturally and necessarily, dependent on the exclusive possession, there a man must have an exclusive right of possession, in order to have an exclusive right of use. But whenever the practical exercise of an exclusive right of use, is naturally possible, without the exclusive possession, there the two may be separated, and a man may have an exclusive right of use, with only a common right of possession.

For the law to require an exclusive possession, to sustain the right of exclusive use, when a common possession is just as good for the practical exercise of that right, would be interposing an unnecessary obstacle to the enjoyment of one's rights.

When a man parts with the exclusive possession of an idea, he parts with what it is naturally impossible he should ever recover. And if the practical exercise of his exclusive right of use, were, naturally and necessarily, dependent upon his exclusive possession, his right of exclusive use would be forever lost, with his right of exclusive possession. But since the practical exercise of his exclusive right of use, is not in any way dependent upon his exclusive possession, the question of exclusive possession has legally nothing to do with his right to the exclusive use; and the owner of an idea may, consequently, give to all mankind, a perpetual and irrevocable possession of it, in common with himself, without his own right to the exclusive use of it, being at all impaired thereby.

The case of the owner of an idea, after he has given to others a knowledge or possession of it, in common with himself, is nearly or quite similar to that of a man, who should grant to others the perpetual, but naked, right, to come personally upon his farm, and enjoy the prospect, doing no damage, and offering no impediment to his labor; but without any right themselves to cultivate the farm, or to take the crops. In this case, the individuals, so admitted upon the farm, would hold possession of it, in common with the owner, to the precise extent, and for the specific purpose, to which, and for which, he had granted it to them; and they would hold it to no greater extent, and for no other purpose. Now, it certainly could never be said, in such a case, that the owner had lost his exclusive right to cultivate his farm, and take the crops, because he could never recover the exclusive possession of it.

The principle is the same in the case of the idea. The owner admits other men to a simple knowledge of the idea—that is, to a naked possession of it—in common with himself; but without any right to use it, for any industrial or pecuniary purpose. They receive the possession of it, subject to these limitations. Here plainly the owner's right to the exclusive use of it, for industrial and pecuniary purposes, is no more impaired, than in the case of the farm.

Since, then, the owner of the idea has never parted with his own possession of it, nor with his original right to the exclusive use of it, he has no need to recover the exclusive possession of it; because the possession of it by others, in common with himself, offers no practical impediment to his exclusive use of it. The exclusive possession of the idea, being practically unnecessary to his exclusive use of it, it is legally unnecessary. Consequently the fact, that he can never recover it, is a fact of no legal importance whatever, as affecting his right to the exclusive use of it.

Chronology

November 30, 1854 :
Part 1, Chapter 2, Section 14 -- Publication.

January 09, 2020 11:00:35 :
Part 1, Chapter 2, Section 14 -- Added to http://www.RevoltLib.com.

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