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Source link: http://archive.mises.org/10127/sheldon-richman-on-intellectual-property-versus-liberty/

Sheldon Richman on Intellectual Property versus Liberty

June 12, 2009 by

Sheldon Richman has a great “TGIF” ["The Goal Is Freedom," but released on a Friday--get it?] column out today, Intellectual ‘Property’ Versus Real Property: What Are Copyrights and what do they mean for Liberty?. For a very short column, it’s packed with great insights.

Admirably, Richman focuses on justice rather than more utilitarian concerns such as incentive effects:

The crux of the issue is this: Do IP laws protect legitimately ownable things? One’s view of the laws will proceed from one’s answer to that question, and that’s what I will concentrate on here. I leave for another time the issue of incentives. I do so because the justice of a claim must be decided before we consider the specific incentives and disincentives that flow from our decision.

Of course, a principled focus does not mean one doesn’t care about consequences; as Richman adds parenthetically, “(No, this does not make me a “nonconsequentialist.” Consequences figure in our basic conception of justice.)”Richman concludes that IP is difficult

to square with traditional property rights. When one acquires a copyright or a patent, what one really acquires is the power to stop other people from doing certain things with what is indisputably their own property. One can say that a copyright holder doesn’t actually own anything but the legal authority to stop other people from using their own equipment to copy a book or CD they purchased. And one who holds a patent on the widget actually only has permission to call on the state to stop others from manufacturing and selling widgets in factories they own.

Yes, this is the crux of the issue. IP amounts to trespass, or redistribution of property.

Richman quotes Thomas Jefferson to question the contention that property rules “which emerged to avert social conflict over tangible objects are also appropriate to intangible things”:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.

(As an aside, notice what Jefferson writes immediately before the quoted language above:

It has been pretended by some, (and in England especially,) that inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs. But while it is a moot question whether the origin of any kind of property is derived from nature at all, it would be singular to admit a natural and even an hereditary right to inventors. It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it, but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. [emphasis added]

This argument here seems similar to the mutualist occupancy view of property. As mutualist Kevin Carson writes:

For mutualists, occupancy and use is the only legitimate standard for establishing ownership of land, regardless of how many times it has changed hands. An existing owner may transfer ownership by sale or gift; but the new owner may establish legitimate title to the land only by his own occupancy and use. A change in occupancy will amount to a change in ownership. . . . The actual occupant is considered the owner of a tract of land, and any attempt to collect rent by a self-styled ["absentee"] landlord is regarded as a violent invasion of the possessor’s absolute right of property. [emphasis added]

Thus, for mutualism, the “actual occupant” is the “owner”; the “possessor” has the right of property. If a homesteader of land stops personally using or occupying it, he loses his ownership. Carson thinks this is compatible with libertarianism: here he writes “[A]ll property rights theories, including Lockean, make provision for adverse possession and constructive abandonment of property. They differ only in degree, rather than kind: in the “stickiness” of property. . . . There is a large element of convention in any property rights system–Georgist, mutualist, and both proviso and nonproviso Lockeanism–in determining what constitutes transfer and abandonment.”

I have a forthcoming criticism of Carson’s notion that mutualist occupancy is a type of libertarianism; I believe it is antithetical to libertarianism–libertarianism is Lockean. But suffice it to say for now that for an anti-mutualist libertarian, Jefferson’s comments above at first glance seem uncomfortbly close to mutualism. However, I think Jefferson’s comments here are not really so bad, for two reasons. First, I think Jefferson was trying to make even the argument for normal property seem a bit weak, so that IP seems even weaker by contrast. Second, he only denies that there is a natural right to hold property beyond occupancy–but he is not opposed to property being owned beyond occupancy, at least in an advanced society, unlike mutualists who think occupancy is a requirement even in mutuatopia.)

Back to Richman. He has a section dealing with a crucial mistake made by many proponents of IP: their explicit, or implicit, notion that creation is a source of ownership. Why do “so many advocates of freedom” support IP, even though it amounts to applying rules applicable to scarce, tangible resources, to non-scarce, intangible ideas where no conflict is possible?

A key reason is the importance attached to the act of creation. If someone writes or composes an original work or invents something new, the argument goes, he or she should own it because it would not have existed without the creator. I submit, however, that as important as creativity is to human flourishing, it is not the source of ownership of produced goods.

So what is the source? Prior ownership of the inputs through purchase, gift, or original appropriation. This is sufficient to establish ownership of the output. Ideas contribute no necessary additional factor. If I build a model airplane out of wood and glue, I own it not because of any idea in my head, but because I owned the wood, the glue, and myself.

(Richman is right on. I’ve written on this exact issue before: see Against Intellectual Property, pp. 36 et seq.; Libertarian Creationism; Rethinking IP Completely; and my ASC talk and related material linked here.) I like Richman’s insight here that creation is not the source of ownership; rather, that the source of ownership is “Prior ownership of the inputs through purchase, gift, or original appropriation.” In this connection, as I noted in Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors, Hans-Hermann Hoppe writes in his classic article Banking, Nation States and International Politics: A Sociological Reconstruction of the Present Economic Order:

One can acquire and increase wealth either through homesteading, production and contractual exchange, or by expropriating and exploiting homesteaders, producers, or contractual exchangers. There are no other ways.

Note that Hoppe here acknowledges that “production” is a means of gaining “wealth”. But this does not mean that creation is an independent source of ownership or rights–production is not the creation of new matter; it is the transformation of things from one form to another; things one necessarily already owns. Therefore, the resulting more valuable finished products–the results of one’s labor applied to one’s property–give the owner greater wealth, but not additional property rights. If I carve a statue out of my stone, I already owned the stone, so I naturally own the resulting statue; what has changed is that I have transformed my property into a new configuration that is worth more to me, and possibly to others. (This is discussed further in Owning Thoughts and Labor.) (Similarly, if two people trade goods, each is now better off–i.e., the trade has created wealth, without creating new things–already-owned things were what was traded.)

***

Finally–Richman also highlights Kevin Carson’s view that, because of “[t]he growing importance of human capital [i.e., the ideas in people's heads], and the implosion of capital outlay costs required to enter the market,” the free society and competitive economy require an end to intellectual “property.” (Richman observed to me that he was impressed Prychitko had written on this back in 1991, as noted in Carson’s piece.)

{ 22 comments }

Michael A. Clem June 12, 2009 at 2:18 pm

What, no comments, yet? Sheldon has a way of putting things that seems so straightforward and indisputable, even though he is essentially saying the same things that have already been said many times over on this blog.

David Spellman June 12, 2009 at 2:35 pm

All rights depend upon the claimant’s ability to exert them. We can talk all day about having a right to life, but if we cannot prevent someone from killing us, it is not much of a right. We can homestead a vacant tract of land, build a house, plant crops, and fence the pasture for cattle, but if another man disposes us from the real estate against our will, property rights are not of much effect. If we develop an idea or create an intellectual work, we may claim a controlling interest in it, but if we cannot prevent other people from using or enjoying the fruits of our labor, intellectual property is a figment of our imagination.

We debate what should be a right. Some people think that taking life is legitimate in various circumstances. Some people believe that taking property through regulation, taxation, or appropriation is justified for various reasons. Some people believe that the products of men’s minds are free for the taking and profit by anyone so inclined. The world is full of books and speeches arguing for all sides of the debate about what constitutes rights and property.

No matter what set of rights or definition of property appeals to you, it is critically incumbent upon you to devise a way to maintain your conception of reality against predations by those who would countermand your view. If you want a right to life, you must be able to prevent your death. If you want to own and control real estate, you must be able to control occupancy of your premises. If you believe you have a controlling interest in intellectual property, you must be able to prevent others from making use of the ideas or abstractions you claim to own.

What I see with much of the arguments against the existence of intellectual property is the idea that the supposed confabulation of intellectual property only exists at the behest of the State. The subsurface supposition is that without the intervention of the State, the evil of intellectual property simply could not survive on its own. In other words, intellectual property is merely a manifestation of State granted monopoly that would not exist in a libertarian society.

Since I am at most a minarchis,t if not an anarchist, I do not support any unnecessary government intervention in business affairs. So I would gladly obliterate patents and copyrights as artifices of the State (along with corporations as recognized legal entities). The question is, would intellectual property still exist as a practical construct? Could and would intellectual property rights still be enforced by some means other than State violence?

It would be extremely naive to believe that intellectual property could not stand on its own. All that is required is contract law. So long as there is any mechanism for enforcing contracts, intellectual property can be defined and enforced. After all, a contract is a kind of intellectual property–it is an abstraction that binds two or more parties to action and exchange. There is nothing in Nature like a contract; a contract is entirely a product of the intellect of man.

All the rhetoric in the world will not change the fact that if men can make and enforce contracts, they can create and defend intellectual property. Contracts can be created to reveal ideas with all manner of penalties for spreading those ideas beyond the contracted uses. Contracts can be made to disseminate works of art or intellect in any media with imaginative penalties for misappropriation beyond the agreement. Contracts can be made to share designs and processes with the stipulation of forfeiture and remuneration for revelation to other parties. Covering your ears and shouting “I can’t hear you!” will not change the fact that in a free society, contracts could be made with arbitrary and unlimited conditions to incarnate intellectual property.

Obviously, no matter what the contractual arrangement is, people can break their contract. They could spread the ideas, copy the books, share the processes. The violator would then pay the penalties agreed to in the contract. The person who contracted to reveal or share the intellectual property would need to calculate the value of the ideas when they drew up the penalties to be exacted for violation of the contract. We could expect that those penalties might be very large, large enough that the seller would even be glad to exact the penalty since it would maximize the value of the contract.

On the other hand, why would buyers agree to protect the franchise? If they have paid a fortune for the knowledge, it might be in their interests to keep the secret if they gain an enormous competitive advantage. They might make a mutual contract with the seller that both parties keep the secret under severe penalty. The symbiotic relationship between the creator and consumer of the intellectual property may make both very wealthy if they keep the secret safe. The detractors of intellectual property axiomatically propound the tenet that lack of patents and copyrights will increase innovation. There is no reason to believe that this is guaranteed–there are strong motivations to be even more vociferous in guarding secrets if there is no protection whatsoever.

If you want to declare patents and copyrights anathema, that is fine with me. More power to you since it would dismantle one more brick in the walls of State control. But I am amused, even flabbergasted, that the argument is intrinsically tied to the omnibus idea that intellectual property is the unicorn of property rights. If contracts can be enforced, intellectual property can be defined, bounded, protected, and produce a profit. People with good ideas will find a way to make money.

David Spellman June 12, 2009 at 2:47 pm

# Michael A. Clem
#

“What, no comments, yet? Sheldon has a way of putting things that seems so straightforward and indisputable, even though he is essentially saying the same things that have already been said many times over on this blog.”

There is a difference between winning an argument and having people stop talking to you because your mind is closed to the truth. :)

Michael A. Clem June 12, 2009 at 3:07 pm

Covering your ears and shouting “I can’t hear you!” will not change the fact that in a free society, contracts could be made with arbitrary and unlimited conditions to incarnate intellectual property.
Contractual enforcement is done through the legal process, even in an anarchist society. Unreasonable contracts are unlikely to be enforced. For example, you cannot contract yourself into slavery. Contracts with arbitrary and unlimited conditions might well be considered unreasonable and unenforceable, although the details of any particular contract would need to be considered to make that determination.
Thus, contracts are not a back door to absolute intellectual property, although they might well work for limited IP rights. Also, contracts don’t bind third parties who are not a part of the contract, so any contractual arrangements will need to consider the possibility of externalities and how that affects the arrangement.

Neal W. June 12, 2009 at 4:01 pm

Stephan,

I was having a debate with an IP lawyer a couple months ago and I was trying to get him to see the point that we also need to consider the issue of justice when considering the merits of IP. He told me that IP is mostly civil law and that with civil law it will never come down to a use of force, unlike criminal law.

Is this correct?

jc butte June 12, 2009 at 4:05 pm

“Unreasonable contracts are unlikely to be enforced. For example, you cannot contract yourself into slavery.”

Oh really? Either you have unalienable rights or you do not. Who is the higher authority that declares your voluntary consent “unreasonable?” Either you can consign yourself to voluntary slavery or you were a slave to begin with.

Some of you guys are convincing me that we do need the state afterall. We need it to protect our property from those who covet it, regardless of their motives. In my ideal world, Nicola Tesla would be the richest man on earth. I could live with that and I would gladly pay a few taxes to keep it that way.

Stephan Kinsella June 12, 2009 at 4:27 pm

Neal W., of course civil judgments come down to force. The state will use force to sieze the defendant’s property to make him pay whatever the state says. Or , if an injunction is awarded, then if you breach it, it could be contempt of court–jail time.

BioTube June 12, 2009 at 7:21 pm

IP that binds third parties would be limited to fraud – for example, if I pass a novel off as my own work when somebody else wrote it, I would be committing fraud; the same goes with trademarks.

kmeisthax June 12, 2009 at 8:25 pm

@jc butte
So, you are admitting that copyrights and patents can’t exist without the guns of the state backing it?

Again, I must say, IP is not a natural law right. It supersedes private property. Making it a natural law right would make our axioms contradictory.

jc butte June 12, 2009 at 9:01 pm

@kmeithax

IP is indeed a natural right, although not an unalienable one. I believe it can be protected by private means, but would also approve of government protection.

What the anti-ip crowd is basically saying is that an idea can be copied without attribution or compensation by others. This is clearly an act of theft. Attribution without compensation would be completely absurd as the former justifying the latter.

The example another poster gave of somebody taking Human Action and affixing their own name as the author is right on target.

Gil June 12, 2009 at 9:48 pm

“So, you are admitting that copyrights and patents can’t exist without the guns of the state backing it?” – kmeisthax.

All property rights are backed by force of some sort. No one argue that there’s going to be a perfect world without the need for force. However why should people be the denied the right of ownership just because something can’t be enforced? It’s akin to petty theft of small, cheap items – the owner can’t reasonably recover the items because it would cost more to recover the items than it would be to just replace them.

BioTube June 12, 2009 at 9:51 pm

Mr. Butte, I’ve said before that plagiarism is perfectly handled as fraud; attribution is all origination entitles you to.

Walt D. June 12, 2009 at 10:07 pm

EU rules that less is more!< \b>
At the risk of posting off topic, the EU has ruled that Microsoft’s intention to unbundle Internet explorer from the next release of its operating system in Europe may constitute an unfair trade practice! This was Microsoft’s remedy for the EU finding that including IE in the operating system was an unfair trade practice.

newson June 13, 2009 at 12:41 am

“The example another poster gave of somebody taking Human Action and affixing their own name as the author is right on target.”

it just ain’t so. the von mises wannabe would be unmasked as a phony; his penalty would be societal ridicule. vices aren’t necessarily crimes in a libertarian framework. the social penalty is probably more effective and long-lasting than the penal remedy, in any case.

newson June 13, 2009 at 12:45 am

“The example another poster gave of somebody taking Human Action and affixing their own name as the author is right on target.”

it just ain’t so. the von mises wannabe would be unmasked as a phony; his penalty would be societal ridicule. vices aren’t necessarily crimes in a libertarian framework. the social penalty is probably more effective and long-lasting than the penal remedy, in any case.

Peter Surda June 13, 2009 at 7:14 am

@David Spellman:
>It would be extremely naive to believe that intellectual
> property could not stand on its own. All that is
>required is contract law.
There is a small problem with this argument. IP does not give anybody a right to enter a contract. The ability to create and enforce contracts with regards to immaterial goods is not IP, but (classical) property. IP is the ability to prosecute those that violate your exclusivity claims, not those who violate contracts.

Kindly consult a diagram I promote here from time to time: http://shurdeek.shurdix.org/tmp/ip.png

Cheers,
Peter

ktibuk June 13, 2009 at 7:29 am

Stephan,

Was it you or was it Jeff that wrote this letter?

http://www.flickr.com/photos/ritubpant/3620793192/

scineram June 13, 2009 at 8:25 am

If contracts can be enforced, intellectual property can be defined, bounded, protected, and produce a profit. People with good ideas will find a way to make money.

You can make 100 page contracts with whoever you want.
Meanwhile I will just fire up utorrent and enjoy.

Kevin Carson June 13, 2009 at 12:45 pm

David Spellman: While copyright could probably be established by voluntary contract to some degree, it’s extremely naive to think it could exist on anything remotely approaching the present scale absent state legislation. The viability of contractual models depends on the enforcement mechanism. Can you imagine digital content “owners” trying to enforce their “rights” absent the DMCA and state-mandated criminalization of “technical means of circumvention”? Imagine if the digital content “owners” actually had to meet traditional common law burdens of civil proof in establishing violation of their rights, without the aid of a federal surveillance state.

ReadandWrite June 13, 2009 at 2:49 pm

@David Spellman

The difference between contracts and property:

Contracts only bind the contracting parties.

Property binds everyone to the will of the owner.

So if “intellectual property” was a matter of contracts, every non-contracting party could legitimately use the content the contracts were about.

A and B are contracting parties. What about C?

RWW June 13, 2009 at 7:24 pm

What the anti-ip crowd is basically saying is that an idea can be copied without attribution or compensation by others. This is clearly an act of theft.

Handwaving isn’t going to convince anyone.

…attribution is all origination entitles you to.

No, you’re not even entitled to that. Why would you be? If I copy a book and place my name on it as author, I am committing fraud (but against the buyer, not the author). If I copy a book and simply remove the author’s name, their is no actual crime.

(Note that, as usual, I am using “crime” in the sense of what is criminal, not what is illegal.)

Octobox July 19, 2010 at 11:03 pm

Making distinctions of this right or that right is covered under the force-agency court system is akin to voting and lobbying — in effect it leads to perpetual war and thus no peace and thus no liberty.

In the “no liberty” state of things perpetual disequilibrium is the goal, however, rather than it being based on fickle consumers it’s based on the fickle “owners” — Fed – Elite Lobbiers – Gov’t.

The answer: Eliminate all rights, voting, and lobbying — if the goal is to end perpetual war.

The only individualis in a free-society who should be “lobbied” is the consumer while the consumer is the only one who votes — anything else is an abdication of self-rule.

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