Created Works and the Public Domain

Public Domain Day 2025 came up as a Google News item. I have given some thought to the traditions and laws about intellectual property and I have only questions. In other blog posts I commented on the contradictions, but I have no integrated proposal. 

Common assumptions about property are rooted in the physical reality of land: it is impossible for two objects to be in the same place at the same time. Thus, land is rival and exclusionary: if an entity (person, family, etc.) possess it, then another cannot. Copyrights and patents attempt to include “ideas” into “lands.” However, intellectual property is metaphysically different from physical property. 

 Based on the definition that property ownership is rival and exclusionary, collectivist thinkers built a truth table to show Common Resources (excludable but non-rival) and Club Goods (rival but non-excludable). That is nonsense. 

Define Human as “rational animal” and the non-rational animal and rational non-animal remain not-human. So, too, are common resources and club goods not property. Non-A cannot be A. Nothing is not a different kind of something.

Contrary to the collectivist claims, freshwater, fish, timber, and pasture are all exclusionary and rival. You can’t have your fish and let your neighbor eat it, too.

 

What they call “club goods” are defined and limited by technology, not by metaphysics. Discussing radio broadcasting in her essay, “Property Status of the Airwaves” Rand correctly pointed that two broadcasters cannot share same frequency. But they can. Just not at the same time. And time-slicing allows two (or more) broadcasters to occupy the same wavelength. However, that does not change the fundamental principle that these timely-sliced increments are property. 

From Diabolo Valley College Econ101 linking from PennState,
College of Earth and Mineral Sciences.
"EBF 200 Introduction to Energy and Earth Sciences Economics:
Public Goods and Common Pools."
Also found in Investopedia and Quickonomics.

Common resources – non-excludable but rival (freshwater, fish, timber, pasture)

Common resources are defined as products or resources that are non-excludable but rival. That means virtually anyone can use them. However, if one individual consumes them, their availability to other consumers is reduced. The combination of those two characteristics often results in an overuse of these resources because demand exceeds the available quantity (see also the tragedy of the commons). Examples of common resources include freshwater, fish, timber, pasture, etc. -- https://quickonomics.com/different-types-of-goods/

 Club goods – excludable but non-rival (cable television, cinemas, wireless internet, toll roads)

Club goods are products that are excludable but non-rival. Thus, individuals can be prevented from consuming them (i.e., access can be restricted), but their consumption does not reduce their availability to other individuals (at least not until a point of overuse or congestion is reached). Club goods are sometimes also referred to as artificially scarce resources. They are often provided by natural monopolies. Examples of this type of goods include cable television, cinemas, wireless internet, toll roads, etc. -- 

https://quickonomics.com/different-types-of-goods/

 

It is true that you and I can both watch the same program on cable-TV. The hidden error was identified by Ayn Rand as “the blank out” and Rand identified its logical expression as the fallacy of the stolen concept. You and I can both watch the same cable-TV show – up to a point: we all know what happens when too many users overload a website. More deeply and cogently, for anyone to access television or the internet, physical goods must be produced. The perception of social largess as a “club good” blanks out on the previous non-existence of roads and theaters.  

We [the American Historical Association] encountered a similar experience in 2001, when the AHA decided to create a freely available online collection of Civil War newspaper editorials, utilizing two volumes originally published by the AHA in 1931 and 1942. AHA staff quickly discovered that no copyright renewal was ever filed for the second volume, edited by Harold C. Perkins, and it subsequently had entered the public domain. However, the editor of the first volume, Dwight L. Dumond, had renewed the copyright in his own name in 1959. Orphan Works Notice of Inquiry – 70 Federal Register 3739 (Jan. 26, 2005)

http://www.copyright.gov/orphan/comments/OW0676-AHA.pdf

To me, the error was the granting of the copyright to Dwight L. Dumond. As the editor, he was a hireling. His work rightfully belonged to those who paid him for it. The concept of a collective entity in law –what we call a “corporation”-- has roots in the Roman republic. Under Roman law, a flock of sheep was a collective entity: lose a lamb or gain a lamb, it is the same flock. On that basis, cities were taxed: the city was an entity that owed tribute to Rome, itself a collective entity. No one owned a city. Under American law, the American Historical Association as an entity can certainly be protected from theft by its employees. 

 

On or about the same day as the link about Public Domain Day, Google News offered a link to a story from GameRant.com about the Star Trek canon. Star Trek is owned by Paramount Global. (The July 2024 merger with Skydance may be challenged now through the FCC but that does not affect what follows.) Since 1966 many details of the continuing, expanding, and extending myth have been changed. Others remain constant. In this case, the legal owners changed an element of the canon - the physiognomy of the Klingons was altered in Star Trek: Discovery and the fans objected. (Klingons had changed once already but that was accepted.) Using a new storyline in Star Trek: Lower Decks, the owners offered some technical explanations for the change. 

 

To me, that is all good because myths change in the retelling. Mythology allows that: characters can merge or split; new characters can be entered while established characters leave. Star Wars: A New Hope is just the Wizard of Oz: Luke is Dorothy; R2D2 is Toto, … But in Star Wars, one aspect of the Wicked Witch (Darth Vader) is saved while the other aspect of the character (the Emperor) perishes. That begs the basic question: Who owns Star Wars or Star Trek or Harry Potter?  At what point does the creation of intellectual private property enter the public domain? Is there such a point? 

Back in the early 2000s, before the Atlas Shrugged movies were released, a Rand Fan created some Atlas Shrugged swag, a Rearden Steel trucker's cap, etc. The Ayn Rand Institute sent her a lawyer letter reminding her that the artifacts were based on the copyrighted works of Ayn Rand. So, as an Objectivist herself, she ceased and desisted. But we cannot imagine Paramount chasing down every "Beam me up, Scotty" bumper sticker. And personally, I think that the ARI should have just shrugged it off by labelling their gear "Official" the way that Major League Baseball does. 

 

https://web.law.duke.edu/cspd/publicdomainday/2025/

I have donated to the Internet Archive and the Wayback Machine. (Similar archives include the Hathi Trust and the Linda Hall Library.) Like the promoters of Public Domain Day, my comrades at the Internet Archive claim a moral high ground because they are offering the works for free and have no commercial interest in the use. To me, that argument is irrelevant. And it is falsified by several considerations. They do accept donations, and it is easy to assume that donors are users. Absent donors, the entity would not exist. So, they are in business. And in business for a profit because not-for-profit is only a matter of bookkeeping: owner's equity is called "net assets."

Long ago, writing in The Libertarian Connection, Skye d’ Aureus and Natalie Hall argued against Ludwig von Mises’s assertion that truth and beauty are not economic goods. Skye and Natalie pointed out that truth and beauty must be produced by human action.  

As collectivism grows in popularity, and as the nonproductive consider themselves increasingly entitled to the wealth created by the productive, Rand’s arguments in favor of intellectual property rights merit reinforcing not diminishing. -- "Ayn Rand's 'Patents and Copyrights'" by Marilyn Moore, posted May 28, 2019.  https://www.atlassociety.org/post/ayn-rands-patents-and-copyrights

Writing for the Atlas Society, Marilyn Moore (Director of Student Programs) parsed the difference between copyrights and patents and argued contrary to Rand that literary works should be patented while inventions should be copyrighted.  Moreover, Moore asserted, as a metaphysical fact, a discovery cannot be patented or copyrighted. First, the discoverer did not create the fact; and, second, once announced to the public, the discoverer cannot prevent other people from now knowing what they know. Third--and most consequentially--it is immoral to deny independent discovery and therefore independent invention. It is unlikely that two people will write the same book. It is well known that two people can create the same solution to a technical problem based on a shared (though independent) understanding of the facts of reality.

 

PREVIOUSLY ON NECESSARY FACTS

Copy Rights and Wrongs 

Objective Intellectual Property Law 

U.S. Patent Law Does Not Add Up 

Patent Nonsense: Intellectual Property Rights and Non-Objective Law 

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