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Source link: http://archive.mises.org/11203/objectivists-all-property-is-intellectual-property/

Objectivists: “All Property is Intellectual Property”

December 9, 2009 by

So says Adam Mossoff, Objectivist law professor, here:

Just FYI, I am just about to complete my first draft of my article, tentatively titled, “A Value-Based Theory of Intellectual Property,” in which I explain why intellectual property rights are a fundamental property right. In fact, my thesis can be summed up as: All Property is Intellectual Property. As far as I’m aware, this will be the first full-length academic treatment of IP that is not only based on Rand’s ethical and political theory, but also contextualizes this IP theory vis-a-vis both the Lockean labor theory of property and the utilitarian scarcity theory of property.

Of course, Kinsella and the other scarcity-based advocates for property rights with the libertarian movement, such as Timothy Sandefur, are appropriately taken down in my paper. I’m presenting my draft at the APA meeting at the end of this month in NYC, and, hopefully, I’ll have a draft up on the SSRN website by the spring. So, people will either have to come to the APA meeting or they’ll have to wait a few more months to download a draft.

[Update: Diana Hsieh, the owner of the blog in question, has banned me from commenting there, so I can't respond or answer questions--so I have to rely on my fellow Misesian commentors here to go over there and make the case.]I discussed Mossoff before in Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors. This was posted as a comment to An Objectivist Recants on IP??, a post by Objectivist Greg Perkins, who previously wrote DON’T STEAL THIS ARTICLE: On the Libertarian Critique of Intellectual Property (discussed in my post Elaborations on Randian IP). Perkins’s post was a response to the Mises post An Objectivist Recants on IP; as I noted there, and in response to him on his post:

Greg,

For those interested, I’ve laid out why I think the entire Objectivist case for IP is flawed and unlibertarian in various articles and posts. I list these below; I encourage those Objectivists seriously interested IP to consider these arguments.

Articles: “Intellectual Property and Libertarianism” (in particular see here and the section on Libertarian Creationism); also “The Case Against IP: A Concise Guide“; for an alternative to the Randian approach to rights and politics, see What Libertarianism Is.

Media: I discuss problems with Rand’s view at length on the Peter Mac show and at the Mises University this year; also The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism.

Blog posts: Rand on IP, Owning “Values”, and “Rearrangement Rights”; Libertarian Creationism; Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors; Inventors are Like Unto …GODS…. Also these blog posts: Intellectual Products and the Right to Private Property; New Working Paper: Machan on IP; Owning Thoughts and Labor; also Elaborations on Randian IP; and Objectivists on IP.

I’m not surprised has to claim that all property is intellectual property; this is at the root of the more consistent, but extreme and absurd, views of IP, such as those of Rand and Galambos. As I noted in Rand on IP, Owning “Values”, and “Rearrangement Rights”:

In Jeff Tucker’s superb article If You Believe in IP, How Do You Teach Others?, he notes Rand’s increasing focus on exalting the creator and elevating “intellectual rights” to such a height that they totally trump real rights. This is no exaggeration. As I noted in Against Intellectual Property, Rand actually, incredibly said that “patents are the heart and core of property rights.” See also my post Inventors are Like Unto …. GODS….., noting Objectivist IP attorney Murray Franck approvingly repeating this quote: “intellectual property is after all the only absolute possession in the world.”

And Galambos believed that man has “primary” property rights in his thoughts and ideas, and secondary property rights in tangible goods; see Against Intellectual Property. So, for those who take IP seriously, they have to relegate property in real things to lowly secondary status, and exalt patterns, information, ideas, “values,” reputations, labor, a right to profit from labor, etc. etc. So no, it’s no surprise Mossoff, trying to defend this system and take it seriously, ends up concluding that all rights are intellectual property.

As noted in the various posts and articles linked above, rights in “value,” patterns, reputation rights, a Marxian-type labor theory of value, etc., all arise when rights to ideas are made primary.

Of course, as Rand herself knew, men are not ghosts; as she said, “Only a ghost can exist without material property.” When she was thinking clearly she also knew that there cannot really be property rights in values or “creations”; as she once wrote:

The power to rearrange the combinations of natural elements is the only creative power man possesses. It is an enormous and glorious power–and it is the only meaning of the concept “creative.” “Creation” does not (and metaphysically cannot) mean the power to bring something into existence out of nothing. “Creation” means the power to bring into existence an arrangement (or combination or integration) of natural elements that had not existed before.

She should have realized that this means there cannot be property rights in value since this would have to mean property rights in arrangements or patterns, which would then give the owner of the arrangement rights in other people’s already-owned property. If she had kept her focus on the fact that rearranging already-existing property can indeed make that property more valuable, she would have realized that creation (rearrangement) is not an independent source of property rights: if you rearrange your own property, even if this makes it more valuable, you already owned the property that you have rearranged (made more valuable). Yet this does not give you rights in other people’s property. You can re-word the Randian view as follows: if you make your property more valuable, it gives you additional property rights-the right to prevent other people from making their own property more valuable. And this makes it all the more obviously flawed.

More on this in Rand on IP, Owning “Values”, and “Rearrangement Rights”. The Randian system, however, applied consistently, would lead to stagnation and death, total absurdity from the point of view of justice. No action in the real world would be possible, as IP would be much broader in scope and term than now–no reason to limit IP to original artistic works (copyright) or practical inventions (patents), it would also have to cover not only reputation (another way we “create value”) but abstract ideas, clothing designs, philosophical systems, anything you can imagine that “has value” … and the term would have to last forever; it couldn’t stop at 20 or 120 years. After all, property rights don’t expire.

And so we would end up with a stagnant, dead society where no one was allowed to do anything, because every action would have to employ knowledge and implement patterns someone else thought of… man would be trapped in a prison of having to ask permission for every single action worse than imaginable even in the most totalitarian regime. Life would be by permission, not by right; and it would be impossible to obtain the millions of permissions needed. As I noted in Against Intellectual Property, pp. 27-28:

By widening the scope of IP, and by lengthening its duration to avoid making such arbitrary distinctions as Rand does, the absurdity and injustice caused by IP becomes even more pronounced (as Galambos demonstrates). And by extending the term of patents and copyrights to infinity, subsequent generations would be choked by ever-growing restraints on their own use of property. No one would be able to manufacture–or even use–a light bulb without getting permission from Edison’s heirs. No one would even be able to build a house without getting permission from the heirs of the first protohuman who left the caves and built a hut. No one could use a variety of life-saving techniques, chemicals, or treatments without obtaining permission of various lucky, rich descendants. No one would be able to boil water to purify it, or use pickling to preserve foods, unless he is granted license by the originators (or their distant heirs) of such techniques.

Such unbounded ideal rights would pose a serious threat to tangible-property rights, and would threaten to overwhelm them. All use of tangible property would by now be impossible, as every conceivable use of property, every single action, would be bound to infringe upon one of the millions of past, accreted IP rights, and the human race would die of starvation. But, as Rand noted, men are not ghosts; we have a spiritual aspect, but also a physical one.[54] Any system that elevates rights in ideas to such an extreme that it overrides rights in tangible things is clearly not a suitable ethical system for living, breathing human beings. No one living can actually act in accordance with such an unrestricted view of IP. The remaining advocates of IP all qualify their endorsement by limiting the scope and/or terms of IP rights, thus adopting the ethically arbitrary distinctions noted above.

In other words, if you take a principled approach to IP, you endorse a system that condemns society to stagnation and death. So most proponents, like Rand, realizing this, start making ad hoc, unprincipled, utilitarian exceptions to avoid the most obvious, harsh consequences of a principled implementation of their confused IP ideas.

{ 59 comments }

Gene Callahan December 12, 2009 at 4:09 am

Stephan, my point is that to abstract out of our moral practice a single principle (such as ‘property is based on scarcity,’ or ‘property is based on creativity,’ or ‘property is based on utility,’ is to distort that practice in the name of a ghostly ideal. All of those ‘principles,’ and more, enter into our current conception of property, and to improve that concept requires taking all of them into account, and from them drawing out a system of property rights that makes our ideas of property into a more coherent world.

newson December 12, 2009 at 9:45 am

to abr:
governance, not government!

ABR December 12, 2009 at 1:32 pm

To newson: thanks for the correction!

I hesitate to jump into the Gene-Stephan debate, because it’s never going to be resolved, but I can’t resist adding my two cents.

When people negotiate with one another, they seek to satisfy self-interest if they are rational. But being rational, they consider the interests of those with whom they are negotiating.

If one could discover a single principle by which all conflicts could be resolved amicably, and all are willing to accept that principle, then that discovery is worth more than gold.

Libertarians believe they’ve found a pair of principles by which to resolve conflict: homestead and non-aggression.

Gene doesn’t think moral practice can be reduced to a single principle or sparse set.

I have doubts whether mutual self-interest can be satisfied by a sparse set of principles.

So far, however, I’d say that of any system whose proponents claim to have the magic wand, libertarianism comes closest.

TheWild Webster November 20, 2010 at 4:25 am

Wow, you do like to namedrop don’t you. I’d was curious to know how you managed to get blocked from ARI, but upon reading this article it’s not hard to guess. So, ‘re-arranging’ someone else’s property gives you no ‘rights’ akin to property eh? Can the ‘force’ you to re-arrange their property? When coupled with the notion of no right to initiate force, if it is someone else’s property and you modify it without consent, you are technically doing so without permission which although not physical force, does constitute a trespass and violation of property right to begin with.
If you modify (re-arrange) someone else’s property with their consent, and they cannot force you to do so it is as any other exchange of value. If you are adding value to their property, you gain the right to expect compensation. The nature of that compensation must be agreed to mutually by both parties – on the case of the one to ‘allow’ you to modify their property, on the case of the other to arrange for any compensation to do so. (one way or the other – if the ‘use’ of the property is of no benefit to the holder of the right to use it, they may instead ‘charge’ for it’s use)
Either you are missing a key factor that there is in fact a right created, or you are being intellectually dishonest with your examination of the premises involved in the scenario you describe. (or maybe you were just too busy citing external source work to distract from your lack of thorough conclusions)

Stephan Kinsella December 12, 2009 at 2:00 pm

Gene,

I am still curious where you think your own (or anyone’s) base principles come from. How are they justified? Or are they? If they are, what is the basis? If not, then all we have is whatever norms we have in common–or whatever norms a relevant community of discoursers has in common (which is why a Hoppean discourse ethics approach has appeal, IMO).

And this type of approach seems to dodge the aggression issue. Are you saying you are in favor of aggression, in some cases…? If so, your “it’s not so simple” approach seems like that of conservatives, who say they believe in liberty but it’s just one of many “values”; they always eristically say they don’t “elevate” liberty to the “highest principle” or some such, unlike libertarians–which is a roundabout way of saying, “I am in favor of aggression because I think value Y is more important.” Which is of course also similar to the way a criminal thinks about it: I will commit aggression because I value that guy’s wallet more.

Basically, you seem to be talking about how to think about what constitutes property but I’m not sure what your conception is. You seem to be criticizing any method of judging things. It sounds like you have some kind of status quo Tory conception, talking about “our conception of property” while permitting no discussion about what it is.

Peter Surda December 12, 2009 at 5:03 pm

@iawai
Thank you for your insightful comment. Would you mind telling me the source for this (infusion&diffusion)?

Bala December 16, 2009 at 7:38 am

PirateRothbard,

” This is one funny Randroid nut. ”

That nut is so dishonest that when I posted a comment reminding him of the need to address Jay Lakner’s question seeking justification for his definition of “property”, he actually deleted my comment. It clearly shows how intellectually dishonest he is and how busy he is evading reality.

KRT June 4, 2010 at 8:58 am

I’m looking for an Anracho-Capitalist’s definition of property. Anyone have any suggestions of essays or books on the subject? I’m assuming/hoping “Against Intellectual Property” digs into it, but perhaps there are other sources as well?

I’ve been working on the premise that property is simply an extension of ones self. Therefore the rights/laws that apply to man, also apply to his property.

Intellectual Property February 8, 2011 at 10:59 am

First off, I’d like to say that I am all for fairness in patent law, and believe the process created can work. Still, I find it often works against the innovator, inventor, and even the student at the local university, which I’d like to get to in a moment as part of my topic and case study here today. You see, we have a problem when the inventor’s dreams cannot be fulfilled because they end up in court, with huge legal bills, while someone else, some company, corporation, government, or university runs off with their proceeds and patent rights.

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