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 

Biohackers 

 

NOT INVENTED HERE

I believe that the best way to define and protect intellectual property is to follow the academic model. Invention and discovery are highly valued. Plagiarism is severely punished. However, the longer the bibliography, the better: you must acknowledge the shoulders on which you stand.  You get full credit for your original work, even if it is only a book review.  It remains that the academic researcher holds a very narrow claim.  Many people can "market" their own presentations of the same idea; but the work of others must also be acknowledged.  The person who published first gets the most credit.

Intellectual property is different from land.  Land is rival and exclusionary: if I have it, you cannot; and my having it prevents you from it.  Most economists define "public goods" as non-rival and non-exclusionary. A sunset is an example.  That also applies to an idea.  The difference is that sunsets exist in nature and ideas are man-made.

Back in the 1970s Durk Pearson and Sandy Shaw (writing as Skye d'Aureous and Natalee Hall in their Libertarian Connection) insisted against even Ludwig von Mises that beauty must be created, and truth must be discovered; so, those, too are economic goods.  When they are created by human action, beauty and truth deserve protection under law.  

1885 Benz Patent Motorwagen
(Wikipedia)

That being true, it is also true that beauty, truth, and intellectual property in general are not land.  You can buy an artist's painting and never share it; but once you do, you cannot take back the experience. Anyone who saw Henry Ford driving his automobile could make one of their own.  More to the point, the idea of a "horseless carriage" was practicable since the development of steam engines in the eighteenth century.  Several experimental devices were constructed and tested, including those of Karl Benz, Wilhelm Maybach, and Gottlieb Daimler all of which used internal combustion engines. The automobile was not unique in having a long pedigree.

NOT INVENTED HERE

Originally published online July 23, 1993

Part 1. THE TELEGRAPH

Samuel F.B. Morse was a painter.  Returning from Europe in 1832, he was told over dinner that electricity could be sent along a wire of any length.  From 1837 to 1844 he worked at perfecting his telegraph.  A stipend from Congress in 1843 for $30,000 funded the construction of a line from Washington to Baltimore along which "What hath God wrought" flashed in May 24, 1844.

The Cooke-Wheatstione patent. June 10, 1837.
(Distantwriting.co.uk)

Samuel Morse met some resistance when he applied for a patent on the telegraph.  Others had already announced similar devices.  In fact, Galvani himself (1737-1798) theorized that electricity could be used to send messages. On February 1, 1753, Charles Morison, living in the town of Renfrew, wrote to the Scots Magazine describing his telegraph.  Small, light balls were suspended and dropped, one for each letter of the alphabet.  Morison's article describes the system in full detail and then goes on to suggest two alternatives.  One is a simple system of bells.  The other method, from our vantage point in time, can only be called a teletypewriter.  Morison's correspondence from 1753 was reprinted in The Telegraphic Journal and Electrical Review (London) for November 5, 1886. 

Part 2. THE TELEPHONE

On May 15, 1876, The Telegraphic Journal reprinted an article from Scientific American Supplement of February 5, 1876.  That piece describes a telephone built by a "Professor Reuss of Friedrichsdorf, near Homburg, Germany."  Also referenced in the same article is a telephone built by the Polytechnic Club of the American Institute and demonstrated at Cooper Union school in New York in 1868.

Telephone 1893 from Imagining the Internet
from Elon University.  It could not send a selfie.

"It is recorded that Minerva sprang full armed from the brain of Jupiter... The speaking telephone is the Minerva of to-day and Prof. Bell is the Jupiter."  So quipped Prof. A. E. Dolbear writing in The Telegraphic Journal and Electrical Review (London) for October 8, 1886.

According to Dolbear, Bell himself, addressing the American Academy of Arts and Sciences on May 10, 1876, referenced no fewer than 60 papers on the subject.  Dolbear's article highlights eight of these.  European journals from the 1850s and 1860s provide texts and graphics to show how sound can be sent electrically. Dolbear concludes: "However much the present telephones may perform better than the early ones, it is only a matter of degree.  It will also be apparent that one who was acquainted with the literature on the telehone previous to 1876, was fairly well equipped for making telephones, and lastly he will be persuaded that the telephone of 1876 had a pedigree and was not a new creation."

An anonymous article in the same journal for November 26, 1886, tells of an American patent (number 77,882) granted to Royal E. House in 1868 for "an electro-phonetic receiver."

Part 3. THE TELEVISION

In 1914, Gosset & Dunlap published Victor Appleton's Tom Swift and His Photo Telephone.  We are still waiting for the commercial visiphone, though several RJ-11 compatibles are available.  The fact is that the device built by the fictional Tom Swift came from the pages of the technical journals of the day. 

The Telegraphic Journal for February 15, 1879, reported the construction of a "telectroscope" by "M. Senlecq of Ardres, France."  This was hardly front-page news.  "The device consists in an autographic telegraph similar to D'Arlincourt's but the sending pencil is of selenium, which, as is well known, varies in electrical resistance with the degree of intensity of the light falling on it."  Again on March 1, 1881, the same journal reported on a "tele-photography" device based on a selenium cell. 

George R. Carey's selenium-based system
for recording and  transmitting images
(June 5, 1890)

Later, in March of 1899, the Journal of the Franklin Institute carried an article entitled "Seeing at a Distance by Electricity."  This telectroscope also depended on the photovoltaic properties of selenium.  "So rapid are the oscillations of the mirrors that the tenth part of a second is sufficient to analyze the image of an object in the transmitter, and to render it visible at the receiving station.  It is therefore possible to transmit a continuous action, such as a theatre performance over the the wires of the telectroscope, since the pictures received follow one another so rapidly as to produce the impression of a moving image, just as the numerous separate pictures of a chomo photographic apparatus reproduce past actions."

By September 19, 1908, Scientific American could report that a "New Telephotographic Device" was an improvement on four previous methods.  None of these was the one used by Paul Gottlieb Nipkow in 1884, though Nipkow is commonly cited as an important contributor to the idea of "television."

Part 4. FAX

In 1972, I worked for the Varsity Cab Company of East Lansing, Michigan.  The office was a Western Union station and they had a fax machine.  It was crude, even by the standards of the day and no one seemed very excited by it.  In truth, fax was widely used along railroad lines for sending orders.

Associated Press wirephoto (fax) of President Kennedy
receiving President Woodrow Wilson's
Hammond typewriter. Image from the
OzTypewriter website of Canberra.

Electrical Communication, the ITT technical journal, carried articles in 1940 and 1943 describing how convenient it is to be able to send hand-written orders via telegraph.  The ITT devices allowed the sender to specify the number of copies so that each member of the train crew could have their own.

Actually, fax was old technology by then.  Scientific American for December 21, 1907, and for June 12 and August 21 of 1909 reported on two different devices for sending black and white raster graphics via telegraph.  By this time, the idea was 20 years old.

The Journal of the Franklin Institute for December, 1885, tells of "fac-simile."  A paper by Edward J. Houston reported on the "Delaney apparatus."  "Writing, sketches, maps, etc., produced at one end of a telegraphic apparatus are automatically reproduced at the other."

ALSO ON NECESSARY FACTS
Objective Intellectual Property Law
Patent Nonsense
U.S. Patent Law Does Not Add Up
Copy Rights and Wrongs

Contradictions in the Patentability of Numbers

A number can be patented.  The US Patent and Trademark Office will claim that this is not true, but has indeed given patents to numbers.

The title, “On Computable Numbers” (rather than “On Computable Functions”) signaled a fundamental shift.  Before Turing, things were done to numbers. After Turing numbers began doing things.  By showing that a machine could be encoded as a number, and a number decoded as a machine, “On Computable Numbers” led to numbers (now called “software”) that were “computable” in a way that was entirely new.” – Turing’s Cathedral: The Origins of the Digital Universe by George Dyson, New York: Pantheon, 2012.

Since 1880, the USPTO has not required an actual working model, but will grant a patent only based on the plans.  Therefore, without actually producing the working program as an array of gates on an integrated computer circuit (or “chip”), you could get a patent on the Gödelized code for the description: one number would contain all of the necessary information.  That is an extreme example.  Many more instances, all  mundane to computing are easy to find.

The binary number 00100000 = 20 in hexadecimal or base 16 is the same as 32 in base-10.  For a computer that is controlled by an Intel 80xxx processor, that number encoded on an integrated circuit “chip” will terminate the program process.  It is a “stop” command.   The number could be “burned in” and the logic gates would be permanent.  Most often, though, the integrated circuit chip is programmable and only holds a temporary configuration. 

A computer program is just a number.  At the level of human obviousness, a computer program is a string of numbers.   Here is a program.

10110100 00101100 11001101 00100001 10110000 01000110 11111110 11101110 00001010 00100000 00000001 10001001 11000010 10110100 00001001 11001101 00100001 11001101 00100000

That binary representation might seem esoteric, but to a programmer who knows Intel 80xxx processors and the MS-DOS (“Windows”) operating system, it is as “clear and open” as Morse code to an old Navy radioman.  Here it is in hexadecimal as a more human-friendly kind of computer code.

B4 2C

CD 21

B0 46

F6 EE

05 20 01

89 C2

B4 09

CD 21

BA 18 01

CD 21

CD 20

Here is what that means and what it does:

B4 2C    MOV AH,2C       Get the clock

CD 21    INT 21          execute

B0 46    MOV AL,46       Get the seconds

F6 EE    IMUL DH         multiply the DH by the Seconds   

05 20 01 ADD AX, 0120    add 120 to that

89 C2    MOV DX,AX       put that number in the DX register

B4 09    MOV AH,09       display to screen

CD 21    INT 21          execute

BA 18 01 MOV DX, 0118    end of line

CD 21    INT 21          execute

CD 20    INT 20          quit

If this were programmed into an integrated circuit chip it would be a Fortune Cookie device. (It would need the list of Fortunes, but those are plain text and easy to insert.)

Again, for the purposes of the USPTO, every computer is momentarily “hard wired” to be a machine with a specific purpose. Each program that it runs creates a new “machine.”  Every computer program creates a new mechanism, a new system of logic gates “burned” (temporarily) into an array of integrated circuits.

That is another fundamental contradiction in patent law.  If every program creates a new “machine” then so must every change order, every update, every bug patch.  

Would a bug patch release not invalidate the previous patent?  Patent law has no way to deal with an inventor’s invalidation of his own creation.

PREVIOUSLY ON NECESSARY FACT

Objective Intellectual Property Law

Patent Nonsense

US Patent Law Does Not Add Up

Gödelized Codes

This was described in "The Gold at Starbow's End" by Frederick Pohl in Analog Science Fiction / Science Fact, April 1972. The example here is mine.

Write out the plain text message.  Encipher each letter with a prime number in sequence: 1, 2, 3, 5, 7, 11, 13, 17, 19, ... Then, use the alphabet position of the letter as an exponent.  A=1, B=2, C=3, D=4, and so on.  Raise the prime number to the exponent and you have an integer.  Multiply all the integers of the text into one large number.  

HIDE A BAD FACE

TEXT	H	I	D		E			A		B		A	D
PRIME	1	2	3		5			7		11		13	17
POSITION	8	9	4		5			1		2		1	4
FACTOR	1^8	2^9	3^4		5^5			7^1		11^2		13^1	17^4
INTEGER	1	512	81		3125			7		121		13	83521
TEXT	F			A		C					E
PRIME	19			23		29					31
POSITION	6			1		3					5
FACTOR	19^6			23^1		29^3					31^5
INTEGER	47045881			23		24389					28629151

The product of all the integer factors for this one artificially easy example is over

4,739,426,072,295,360+ sextillion.  

Using the Preamble to the Constitution - "We the people of the United States..." - the H enciphers to 3^20 or 3486784401 and the first P is more than 45949729863572200.

The message conveys meaning only when it is deciphered.  It is easy to see that the longer the message, the harder that will be.  It quickly surpasses any theoretical computing ability and soon requires more time than is in the universe. 

That being true, it remains that the single large integer does uniquely contain that information and no other.

The method was name for Kurt Gödel. “In mathematical logic, a Gödel numbering is a function that assigns to each symbol and well-formed formula of some formal language a unique natural number, called its Gödel number. The concept was used by Kurt Gödel for the proof of his incompleteness theorems. (Gödel 1931).” Wikipedia here. 

ALSO ON NECESSARY FACTS
Charles Babbage: Code Breaker 
Codes and Coins 
U. S. Patent Law Does Not Add Up 
Soldiers of Peace