Discussion on the possession of discovery

Sometimes discussing particular and obscure subjects yields its own interest, by making us question our underlying assumptions (which, by necessity, are themselves obscure) and bring a new light to our knowledge. Such is the case about the possession of discovery (PoD).

First, let me define PoD. Discovery being the action of finding something which was previously unknown, possession of discovery could be defined as the ownership of what has been discovered (in the case of explorers, land). This process is detailed later in the conversation.

Surely this point is not very important, especially in today’s world (where no land and few scientific domains remain to be discovered). However, it raises interesting questions and is indeed not easy to unravel. This is, therefore, a condensed version of a discussion I had with good libertarian Alex Akselrod (home page : http://www.self-sufficient.org/).


We start from libertarian, objective premises, vis : that rights are absolute, that the right of property exists, that the proper role of the government is to protect the rights of all, the epistemic primacy of reason, etc.

natural resources vs man-made

The discussion began on the subject of newly discovered property, and the laws to apply to it. I established that the two categories important for such a discussion are entities that are natural resources, and entities that are man-made. I then expressed my initial opinion that the rules on man-made entities are obvious (he who makes something owns it, all other things nonwithstanding).


Alex then got to the case of natural resources and homesteading. Homesteading was then summarily defined as claiming a piece of land that was previously unoccupied. He discussed a difficult example of regulation in this area, that of a river.

Suppose person A uses 500 gallons of water a day, and person B settles upstream from A. Person B starts using so much water that only 250 gallons of water a day is left for A. Under common law, this is theft. This was also Alex’s position.

who owns the water ?

I objected to this notion on the grounds that no one owns the water stream. What is in question here is the flow of water. This flow is not a fixed piece of land (as it might seem to someone measuring the flow at one particular point) but a process. Any interruption in this long process makes the flow of water diminushed or reduced to nothing. It is for that reason that one cannot be guaranteed a stream of water of X liters/day.

Obviously this is not a property of land. Land can usually only be destroyed by direct influence upon it (barring things like landslides).

This is why I contended that this flow of water cannot be owned, and that therefore if someone does claims it, then it is an arbitrary, irrational claim.

Alex then countered by saying it was a devaluation of property. But this would be akin to an industry settling one block away from you : people can take legal actions which devalue another person’s property. This is therefore no indication of a crime, and since the flow cannot be owned, this closes the question in my book. In fact, I pointed out that in free markets, competition is akin to a form of devaluation (of the property of other companies).

This of course is aside from a possibility that you have a contract with the seller of the part of the river you are on, which would guarantee a given flow. However, such a contract would be foolish, for the reasons mentioned above.

my initial proposition

I then expounded my own idea on PoD. I think that newly discovered natural resources must be controlled by the government, which must then proceed to sell or rent it (depending on market conditions). This, in my view, is the best alternative.

rights vs powers

We then got to an important point : the difference between rights and powers.

Alex asserted that my position seems initially hypocrite, since a government may claim to have PoD but not individuals : however, governments have no more rights than individuals ! I countered by elaborating on the distinction between rights and powers. It is correct to say that a government – as a group of individuals – has no more rights than one individual. However, that does not mean it has no more powers (powers here not being defined strictly but as possible actions that can be undertaken legally).

I added that the PoD’s nature, for me, was that one of the fundamental roles of government was the administration of new discoveries. Our disagreement was established to hinge on the PoD, at this point.

concrete example : Marconi

We then grounded our discussion on concretes by taking the example of Marconi and radio waves. Radio waves are a type of EM wave used for audio, video, and data communication in general, through the air. All radio waves have frequencies, and can travel a certain distance proportional to the frequency and power of the signal.

Now, suppose that you are Marconi, and you found these principles (so did Tesla, but let’s take Marconi). You would see that they can be used as a new form of communication. We can then suppose that you would reveal your discovery, usually thru science journals. The problem is what follows next.

what did Marconi make ?

We then proceeded to establish a simple principle : whoever makes something, owns it (barring contracts, of course – we assume this is not the case here). What, therefore, did Marconi make or build ?

He made a radio transmitter and receiver that uses a specific frequency in a specific geographic location. Therefore, we give him a patent for that.

He also found the theory behind radio waves. We give him a copyright on that – or perhaps, as Alex preferred to argue, he could use nondisclosure agreements to protect his discovery. The specifics are not as important as the fact that he owns the theory also as intellectual property, in some form.

But Marconi did not make the band of frequencies that can be used for communication. It is a natural resource, and therefore unowned. Therefore, I asked, whence comes his claim of ownership ?

Alex then discussed that Marconi, we hypothesize, set up his transmitter and receiver in a particular area, using certain sets of frequencies, transmitted with enough power to be detectable in its home city, say Rome. He argued that Marconi would be justified in laying claim to that small set of frequencies in that area.

This has the same problem than before : Marconi did not make this band of frequencies, he merely used them. Nature “made” them. However, no one owns these radio waves either, since no one made them. Therefore claiming them would be a victimless crime – which seems to be a contradiction.

It seems that both sides of the coin are inadequate to explain this phenomenon (the claimant is neither a criminal nor within his rights). Therefore we must look somewhere else than rights for the answer – the proper role of government.

right of/to property

Before engaging the second part of the discussion, we discussed an issue briefly, that is the difference between right to property and right of property. Marconi has no claim on the air or the useful frequencies that can ushered therein. Therefore they are not within his right of property.

One does have a right to property – to the property that he owns. But this is redundant.


rights vs powers redux

We came back once again to establish the distinction between rights and powers, because it is crucial to a discussion of the government’s role.

Since one person does not have a right to unowned property, why should the government ? Because, I argued, it is part of its role. While the government has no more rights, it has more powers (a synonym could be “role”). Its powers are administrative in nature, in the protection of natural rights. It is obvious therefore that a government does not have a right to PoD, not any more than individuals do.

I started to define a power as an action which protects natural rights, while not breaking on other people’s rights. For example, the government does not have the right to arrest criminals, but has this power to do so. Citizens cannot arrest criminals, but can defend themselves.

Since no one can claim property of a discovered natural resource, the government does not break any rights by taking PoD. The justification I proposed for this action is protection and perpetuation of property rights. However this justification can be debated, as it was later.

In my mind, at least, there is no doubt that lack of ownership is a cause of socialist measures. After all, no one owns it at all, any more than one owns public land (it is owned by an impersonal, abstract and bloated entity that we call “government”). It seems to me that, for example, the fact that no one owns a planet leads to the kind of socialist space-faring that we have today – leading to the destruction of rights.

Our disagreement, at this point, is on the role of government.

where’s my minarchy ?

Alex then contended that, while the role of government is to protect rights, a minarchy must be given as few powers as possible. I found this point debatable. The question of “size” can be taken from various angles – physical size, land occupied, number of workers, or the powers it has. The Nolan Chart, for example, restricts its analysis to freedom given to its citizens. On that basis, a government which claims PoD is not any less minarchist, since this power does not break any natural rights (as it shouldn’t).

Our disagreement is now pin-pointed to the relationship between the role of government and PoD. We have reduced the discussion to its core.

practical considerations of government-based PoD

The discussion then went into real-life applications of my own proposition. In the case of the radio spectrum, the government would own it in its own land, and then sell or rent it. But with land, the question is more complex, since no government exists on it. I contended that the situation would therefore be reduced to the homesteading example which we discussed earlier, but for governments instead of individuals (precisely the chaos which government-based PoD seeks to stop – see the “rights vs powers” section).

A government using PoD must sell the resource thus acquired to its citizens. But then, why would anyone seek to discover new resources, with this profit “taken” from him ? As we have seen, the discoverer acquires a fair amount of physical and intellectual property from the whole affair, even without this revenue (see “what did Marconi make ?”).

the missing link

What, therefore, is the link between the government’s role and PoD ? Alex asked whose property rights would the government be protecting by claiming PoD. I answered : the property rights of every individual.

Unfortunately, this was the end of the discussion.



There are two positions one may take on this final issue. Either the role of government does give leeway to public PoD, or it doesn’t. Based on freedom parameters, either side of the issue do not make a system any less minarchist.

Permitting governmental PoD seems rather arbitrary, but so does authorizing the claim of the homesteader. Leaving PoD to the government seems to be the clearest way to decide this issue, in my opinion, and in a manner in line with the role of government.