On Andrew Galambos and His Primary Property Ideas
Alvin Lowi, Jr.
e-mail: a l o w i @ e a r t h l i n k . n e t
Original Version:
© 1998-2000 Alvin Lowi – All Rights Reserved
Section 3
|
CONTRACTUAL DISCLOSURE: A CONTRACTUAL DILEMMA Because of the subject matter of his discourses, Galambos had to admit that a meeting of the minds between himself and his students regarding any specific commitments to perform any particular task with respect to that subject matter could not be made prior to his disclosures. The proprietary notice was no more than a non-disclosure agreement. Thus, it was simply a covenant acknowledging Galambos’ claim to antecedence at the outset and calling for abstention from disclosure pending further agreement regarding any specific notion or action. No further agreement was specifically forthcoming, and none was anticipated until and unless negotiated after the course when the student would be presumably informed sufficiently to enter into a contract responsibly. Therefore, the proprietary notice was relegated to the status of a ritual. As a result, Galambos never had a bonafide contract with any of his students to behave toward any specific ideas in any particular way. He only had a covenant against certain behavior regarding unspecified ideas, such behavior he classified simply as immoral. Consequently, abject secrecy was the only way one could be absolutely sure at the outset not to violate the covenant and become stigmatized as an "immoral" actor. This was the result notwithstanding the following language included in the proprietary notice:10
On the other hand, while subsequent disclosures by Galambos would encourage the student to somehow bring others into the class, he never informed them specifically as to what of the information they received was subject to the covenant against disclosure outside of class. While Galambos may have devised a simple theory in his mind, application of the theory involved a complex and burdensome procedure both for himself and his students to abide. This only goes to show that abstract ideas often lead to complex consequences. In any case, Galambos’ disclosures were irreversible. The genie could not be put back in the bottle. He inadvertently created a bunch of proxies. All that was left for him to do to try to "protect" himself afterward was to engage in exhortations to "moral" behavior and threats to expulsion from his "moral island." Patent attorneys refer to publication by strictly verbal means as "promiscuous disclosure" because they result inadvertently in "dedication to the public." In this event, the innovator is at the mercy of the "public." Whether predatory, fair or generous, the "public" is ill equipped to spontaneously recognize abstract conceptions let alone reward the innovator of such. Nature offers no inherent protection from the effects of promiscuity. It may well be that Galambos did not always behave in harmony with nature. Yet, it is not our place to help nature along one way or the other to punish or reward him. No one appointed us to judge him any more than he us. Our authority, precisely like his was, is limited to allying ourselves harmoniously with nature as best we can. In doing so, we may discover the merit of Galambos’ theory and, if so, find satisfaction in expressing gratitude to Galambos, each in our own way. It would not be appropriate for us to put Galambos in a hero’s crypt. Neither are we contractually bound pay him homage in any particular way. To act as if there were a contract of that sort in effect is highly problematical, to say the least. CURIOUS SUPPORT FOR GALAMBOS’ THEORY People are known to not only pay homage but to tithe themselves financially to a church that brings them assorted abstract notions that palatalize their existence. This they do in the name of revered persons of antiquity. However, the innovators of the ideas to whom the church attributes the program it promotes have long since been relegated to a pantheon of heroes. Scholars labor to trace the authorship of the ideas of the current clergy and their theological program. Needless to say, such efforts are not only academic but also controversial. Notwithstanding the obscurity of the authorship and the questionable authenticity and epistemology of the ideas promoted by the church hierarchy, the existence of the Christian Churches and their considerable annual revenues represents the kind of recognition Galambos envisioned as proper toward the "moral estates" of innovators like himself. While he would have resented any suggestion that his ideas were at all comparable to those embodied in religious institutions, he could not so readily dismiss the likeness of the churches’ and their flocks’ primary property practices to those which he idealized in his theory. Galambos might well have dismissed the obvious likeness of such religious reverence to his theory of "primary gratitude" by citing one of his favorite Hungarian proverbs:
However, in doing so, he would have encountered an old nemesis, namely, using the ends to justify the means. While it may be easier to admire Galambos’ non-sectarian ends than to embrace the ends of the world’s religious sects, the use of moral intimidation as a means of gaining priority recognition seems a common practice. If moral criteria are brought down from a "higher" authority than is possessed by those affected, it is inevitable that a form of servitude will result, albeit possibly voluntary. SOME SOCIAL IMPLICATIONS OF PRIMARY PROPERTY No doubt "intellectual property" (to use the common law term) animates the behavior of an individual and touches all who come into contact with it. How it may be made to behave appropriately in social intercourse is a highly challenging question. Andrew Galambos posed this question in its most general context and claimed to have answered it. Yet, this question remains in the minds of those of us who received Galambos’ instruction. Although he convinced us by his inspired and powerful arguments that such property is the key to the future of the race, perplexities and frustrations persist as to what to do about it. That he left considerable unfinished business in the development of an appropriate theory of social behavior is indicated by the paralysis being endured by his intellectual estate trustees. Clearly, it takes more than a verbal claim or insinuation asserted to sympathetic listeners to create the attributes qualifying ideas to behave as property on a local level. How much more does it take to establish the successful practice of an institution of primary property in society at large in an indifferent world? Curiously, an innovator can retain exclusive ownership of his "primary" estate with confidence only if he refrains from producing any tangible manifestations of his ideas. He maintains secure control only by keeping his ideas to himself. Any disclosure is likely to result in proxies and imitators who may not be able to trace the origin of the ideas they entertain even if they try. When Galambos applied his definition of "coercion" to primary property, his crisp criterion "intentional interference with property" led to an incoherent, arbitrary and contentious practice. Here is an example of a precise but abstract definition producing a mischievous distraction in application. Evidence of intent is untrustworthy even for a priest in a confessional. On the other hand, non-disclosure or secrecy prevents ideas from making any social history whatsoever so that the innovator's satisfaction will be limited to his own mental reveries. In that case, he may become discouraged from a lack of real fulfillment because he will have doomed himself to "contractual oblivion." Non-contractual disclosure is the most prevalent behavior of innovators as typified by Galambos. That he established an explicit covenant regarding his intent to maintain proprietorship proves that he was trying to avoid promiscuity. He was simply unable to follow through with the contractual formalities anticipated by his theory. As a result, he took more risk in realizing his aims for recognition and participation than he may have bargained for. While it is unlikely an innovator would willingly disclose his ideas to a hostile audience, he might willingly forego contractual formalities and dedicate his ideas to the public. This was the posture adopted by Spencer Heath, another practicing patent attorney. Such an act might very well have satisfied his rational self-interest. Having obtained the satisfaction that comes from the conception itself, he might see further profit to himself in terms of the satisfaction that derives from capturing the attention of others and inspiring them in some way. This may in turn create a kind of "resonance" out of which more ideas will be forthcoming. Spencer Heath believed that the more he shared his intangibles with others, the more of them he would have to share. For Heath, disclosure was a means of growing intellectual capital. On the other hand, the innovator has no duty to disclose anything whatsoever unless he is seeking to control or influence the behavior of others in some manner. In that case, he would seem to be obligated to make a full disclosure of all "pertinent" information to ensure against deception leading to defeat in the long run. Since there are never enough good ideas to go around, disclosure recipients as potential beneficiaries are likely to be receptive to an innovator's terms of disclosure, if any. They would be motivated to accommodate him to gain the possible benefits and to encourage the creation of more from where those good ideas came. In order for an innovator to participate in social benefits, he must risk the potential loss of control of his idea that results from a disclosure in some observable form. Then the question arises as to how he may position himself for receiving such benefits with any confidence. Such know-how is a technology that must be first discovered, then learned, perfected and practiced with diligence. This Galambos was attempting to do with a vengeance. A promiscuous disclosure is the antithesis of such a posture. So what distinguishes a promiscuous disclosure from non-contractual disclosure? I suggest that the difference is in the attitude of the discloser and the responsibility he willingly assumes for the consequences of his act. When Galambos turned petulant regarding the "quality" of recognition he was receiving from his disclosees, he was flirting with promiscuity since he could not have his cake and eat it, too. The history of innovation suggests that ideas regularly become the subject matter of contracts whereby innovators successfully participate beneficially in social affairs as their ideas, reduced to practice, benefit all others. This means that ideas do indeed become recognizable to others who accord to innovators some measure of priority or ownership as "creators." Such "quiet possession," as it is known in the common law tradition, is based on a rudimentary form of consensus. Such possession is sufficient to eliminate ambiguity to the point where ownership of the idea can be expressed effectively through contract (usually in writing with a modicum of skill) with specific others to act in some kind of concerted effort on behalf of the ideas. (Such contracts are generally known as intellectual property licenses.) This does not happen by accident or by moral persuasion or intimidation. In fact, in history, ambiguity as well as misappropriation is common and contractual incompetence is frequent even when there is no ambiguity regarding ownership or usurpation of such. This is evidence of both the existence of the "primary" form of property as well as the primitive state of its social practice and treatment. Common law practices regarding "intellectual property" are abundant but they are generally familiar only to patent attorneys who use them in their stock in trade. Such practices are very instructive on how humans have treated property in the past and how they are likely to treat it in the future. I find a striking similarity of treatment in the common law tradition regarding intellectual and real (i.e. land) estates. Indeed, the word "patent" denotes in common language a recognizable title in both fields. It has this value regardless of any standing in court. A curiosity of common law patents is that they do not compel behavior by physical force. They only signify a claim to property by its owner validated by a process of publication followed by a peaceful defense against all challenges and voluntary compliance with the owners’ claims by others. This is how quiet possession prevails over trespass. A right to sue in court comes not from common law but from statute. Another peculiarity of common law patents is that a fee-simple sale of an object that embodies an innovation is considered a dedication of the intellectual property to public use. Whereas, no such dedication occurs upon a license to use or a lease of the same object. In any case, the only protection available to the owner regardless of the urgency of his claim is a sanction of quiet possession that is the outcome of a consensus. Yet, no consensus is possible without disclosure and all disclosures, whether by controlled circulation or publication, involve risks to the disclosor. This observation seems to sum up the state-of-the-art of intellectual property protection at the present stage of development of civilization. References and Notes 10 A. J. Galambos, A. Lowi and S. J. Galambos, "Proprietary Notice--Volitional Science ("V") Courses," Free Enterprise Institute, Los Angeles, CA, October, 1965. |