From Greg's article
The argument that value evaporates if a farmer neglects his land is limited in sight. In reality, a farmer can always rent out his land. How is this any different than a patent holder renting out his idea? While it's true that some property, aka buildings, deteriorate over time, others such as land do not and can last in perpetuity barring an earthquake swallowing the land or a comet destroying the Earth.
Rands answer was that intellectual property represents a static claim to dynamic wealth, while regular property represents a dynamic claim to static wealth. She felt that this distinction warranted the differential treatment you ask about, for the reasons Greg explains in the passage you quote.
To see why this treatment is warranted, one must keep firmly in mind the principle of property, its context and validation. Remember that property is not an intrinsic absolute. It is a contextual absolute.
What does it mean to say someone owns something? It means that they have the exclusive right to possess, use, and dispose of that thing.
But why do they enjoy this right? What makes the thing theirs, and why does it matter that it is theirs?
First, every man has the right to life. Second, a man must live through the use of his rational faculty. He must be free to take the rational actions necessary to sustain his life--hence the right to liberty. One such action he must take is that he must produce the values he needs to sustain his life through thought and effort. However, merely being free to produce is not sufficient to protect a man's right to life. If one produced values but was unable to exploit them to sustain his life (e.g., if others could freely take the values away from the producer), then the produce could not live. Thus, if a man is to enjoy his right to life, he must be able to exploit the values that he creates. This is the principle of property--if you create a value, you should be able to exploit it.
If the principle of property requires that the creator of a value be able to exploit the value, what do we do when the creator of the value is no longer around to exploit it (i.e., has died)? It seems, at first, that the principle of property should cease to operate--the value that was once owned is, owned no more. Indeed, keeping the reason supporting the principle of property in mind, it is the extension of ownership of a value beyond the life of the creator of the value that requires justification, rather than the other way around. The default position would be to end ownership at death.
But what of the fact that the owner transferred the property, does this not change things? Consider the transfer of property in general. Why do we respect the ownership of a person who did not create a value, but instead obtained ownership from the person who did create the value? Clearly the original owner can do whatever he wants with the property, including relinquishing title to it---but why do we think the person to whom the property is transferred has any moral claim to it at that point (after all, they did not create it)? One answer is that we presume the recipient of the property traded a value for the value. By trading a value, the recipient gains a moral claim to the object of the trade. The validation for this principle depends on the general validation of property: for a man to live qua man, he needs to be able to exploit the values he creates; one of the most important forms in which he can exploit such values is trading the values with other people; however, if one cannot keep the values one trades for, then trade becomes useless. Thus, in order that men might trade values with each other, it must be possible to transfer ownership of property. (note that even "gifts" really involve a trade, albeit a spiritual value in return for a material one)
But what about transfers at death? Does the notion of transfer solve the problem of continuing ownership after death? First, we must ask what trade has occurred here? What value does a dead man receive? Further, transfer depended upon the right to exploit ones values through trade, but the donor is dead and thus has no need for trade. Once again it appears that there is no strong reason that compels us recognize the continuance of ownership after death.
At this point, what are the options? I see three: (1) ownership can pass to the intended donee despite the absence of a strong justification, (2) ownership can pass to someone else, or (3) the value can become unowned. I read Rand as saying that option (1) is what we do simply because it is better than the other options. She essentially says, "yeah, you are right, the heirs don't have a very strong moral claim to the property, but their claim is better than that of anyone else." Further, she notes that they do have to be virtuous to keep the property, and in this sense they deserve it. If they do not deserve it, they will not keep it long.
Rand goes on to explain that the heirs taking the property, even if the justification for their doing so is slight, hurts no one. The value will be dispersed to those more deserving in short order if the heirs are unworthy.
This is where the distinction between intellectual property and regular property enters. With regard to intellectual property, can we still say that (1) is the best option? Unlike with regular property, the heirs need exercise no virtue in order to keep it. The worthy and unworthy heir alike will keep the property. Further, all the other problems Rand and Greg point out will occur. Such funcionalistic arguments used to bother me because they seemed unprincipled. However, as I have tried to explain, they are proper here because the case we are considering is at the border, if not outside, the context of the principle. There is no strong principled reason why the heirs should keep the property, but we generally follow that path because it is better than the other choices. That is not the case with IP however, so we do not follow it in that case.
Now, all that being said, I cannot think of a reason why patents only receive 20 years of protection. The argument I laid out only justifies ending protection at the death of the creator. I do not think ending it before his death is proper.
[note: Extending it for a definite period beyond his death is proper (as in the case of copyright, which lasts for the life of the author+70 years), because it allows third parties to make contracts with the owners and not be burned if the life of the author is cut short.]
answered Jan 21 '12 at 13:16