1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar
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 }

Andras December 9, 2009 at 12:33 pm

Before you burn each other on the stake try to compromise. But do it on Kinsella.org!

jon December 9, 2009 at 12:33 pm

“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.

this happens to be an essential humanist belief: that man, and not God, is the only “creator” around. it does not strike me as odd that rand aligns politically, ethically, and now metaphysically with humanists, marxists, and the like.

“there is a battle shaping up in the world,” said roy childs. as far as i know, rand never responded.

Stephan Kinsella December 9, 2009 at 12:50 pm

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.

Rob Ross December 9, 2009 at 12:51 pm

Eureka!

That’s what Archimedes yelled when he “discovered” how to measure the volume of an irregular object while taking a bath (as the story goes, he slaved over the problem until he decided to/ was encouraged by his wife to take a bath. Upon entering the bathwarter, he observed the water level rise and instantly realized that the amount of water displaced was equal to his body’s volume). To whome does this knowledge belong? Did Archimedes “invent” this knowledge? Or did her merely find a way to express a widely known principle? To what degree is “knowledge creation” simply “decription” of otherwise implictly known facts?

Jonathan Finegold Catalán December 9, 2009 at 1:06 pm

I think that if you reach the point where your opponent is banning you from the ability to comment, then you should stop taking your opponent’s opinion seriously.

I think this is one quality which I really appreciate those who make part of the Mises Institute (perhaps not everybody, but at least from what I’ve seen most scholars here have this) is the ability to accept mistakes, or at least accept the opposition’s argument (in the sense that you at least allow them to make their case, instead of outright censoring them).

As I have alluded before, I think this is what has allowed the Misesian (and, perhaps, libertarian movement as a whole, to a slighter degree) movement to evolve over such a correct path. Those who ultimately end up more correct than others over any given point of contention are those who can objectively accept and dissect all viewpoints.

Martin OB December 9, 2009 at 1:13 pm

“Stephan Kinsella — WTF? As you know, you are *STILL* banned from the NoodleFood comments, for repeatedly acting like as ass of enormous proportions. I’ll leave up your recent posts, since they were uncharacteristically substantive. I will delete any further posts from you.

(For those who might not recall, that objectionable behavior included strings of childish insults, then deliberately violating my property rights by posting comments after being banned, and finally sending me so many deliberating harassing e-mails that I had to block him using SpamAssassin.)”

LOL, naughty, naughty, Mr Kinsella. Was it that bad? :D

Stephan Kinsella December 9, 2009 at 2:05 pm

Martin: no, of course not; she’s mischaracterizing. Some Objectivists have no too stunted a sense of humor and can’t understand when you don’t take them seriously. IIRC, in my earlier encounters over there, they were rude and arrogant and superior, and when I responded in kind, and did not pay sufficient obeisance to the official Objectivist word, it didn’t go over well. I think Hsieh didn’t like being mocked for eminently mockable behavior, in my post Breaking, Broken, Broke: Silly Objectivist Tendencies; and Objectivism Schism Form Letter; I break for Randians. Check out also her very unlibertarian praise of total war and the actions of Lincoln’s army during the Civil War.

Stephan Kinsella December 9, 2009 at 2:12 pm

On Noodlefood, Mossoff replies:

As an addendum to my earlier comment, I’d like to point out that both Mr. Kinsella and Mr. Sandefur have critiqued my work on intellectual property by focusing on my very short essay, “Is Coypright Property?,” published in the San Diego Law Review about four years ago. (A copy can be downloaded at: http://ssrn.com/abstract=491466)

For the sake of anyone who has read their attacks and finds them compelling, I hope you may have taken a few moments to read my essay. The reason is that you’ll see that both Mr. Kinsella and Mr. Sandefur explicitly take my arguments there out of context. I explicitly state in the introduction to that 15-page essay:

“a brief remark about the scope of this Essay is in order. This Essay will describe how the property theory that Epstein explicates in *Liberty versus Property* might respond to the specific claims advanced by the Internet exceptionalists. Accordingly, its purpose is not to offer a complete account of why digital copyright is property. That is not possible in an Essay that offers only an abbreviated, descriptive account of one aspect of the debate, especially given the admittedly heretical nature of these remarks to the Internet exceptionalists and their web-surfing allies. The justification of the property theory itself is in Epstein’s article, and in other articles already written or yet to be produced.”

In other words, I wrote this short essay as commentary on another article by Richard Epstein for a conference, and thus I explicitly state that my essay does not prove or justify why copyright is property. I could hardly do this in a 15-page essay, let alone in an essay whose sole purpose is to comment on and respond to a work by Professor Epstein.

Thus, to attack my essay and characterize it as if it represents a complete justification for property rights in intellectual property is at best to construct a strawman argument. Of course, it is unsurprising that neither Kinsella nor Sandefur admit to this misrepresentation of my work in their attacks, but knowing the truth should at least make it easier for third-parties to assess the overall quality of their arguments against me and my work.

It’s common for an Objectivist to trot out the non-operational “context” argument. I linked to his paper in my critique. There was no hiding the ball. There was no misrepresentation. The link to his paper provides all the context an interested reader can want. And I quoted his own words, and discussed them. There was no misrepresentation.

I never characterized Mossoff’s argument as “a complete justification for property rights in intellectual property” nor did I critique on any such basis. Rather, I quoted Mossoff’s words and arguments, and explained why I think he is wrong. No misrepresentation.

As for the “quality” of my arguments, lots of former pro-IP libertarians seem to think they are pretty good.

DixieFlatline December 9, 2009 at 2:25 pm

Remember the higher ground.

Bad ideas are easy to refute if they don’t get mired in pedantry, ad hominem and minutiae.

Robert Brager December 9, 2009 at 2:38 pm

“As for the “quality” of my arguments, lots of former pro-IP libertarians seem to think they are pretty good.”

They certainly changed my mind on the matter.

Gene Callahan December 9, 2009 at 3:33 pm

Of course, both sides are completely wrong: property rights arise from human practices, and are whatever is worked out by the practices. They are not a series of geometrical proofs that can be worked out on a deductive basis. They can be critiqued only from within a world of practice, not from some imaginary view from nowhere.

Beefcake the Mighty December 9, 2009 at 3:43 pm

I really have no idea what position it is that Gene Callahan thinks he’s critiquing.

jeffrey December 9, 2009 at 4:00 pm

Gene, you’ve lost me. Are you saying that if the “world of practice” protects IP, however long and under whatever conditions, we should defer to that world rather than make a “geometrical” critique?

Gene Callahan December 9, 2009 at 4:16 pm

No, Jeffrey, only that in can only properly be critiqued from within a world of practice, and not based on some deductive argument about what property rights “ought” to be.

Beefcake the Mighty December 9, 2009 at 4:26 pm

Whatever it is that Gene Callahan is talking about, it certainly bears no relation to what Kinsella is talking about.

Stephan Kinsella December 9, 2009 at 4:36 pm

Gene, I think your way of phrasing it may be confusing. If you are talking about how actual legal practices–positive law–arise, then yes, they arise from human practices, in some loose sense–i.e., they are what they are. But the question of what laws there are, and how laws actually arise, is different from question about what laws we want or that should be. The latter question is a normative one. Now you may or may not think there are good reasons to criticize a given actual or proposed law as being “unjust”, but if you ever do oppose one and favor another, you are at least implicitly engaging in such normative analysis, n’est-ce pas?

So then the question is simply: do you want to engage in normative discourse about this, to offer and share reasons for or against, etc.? Now, when people say “what is the source of law” or “rights,” they are almost always speaking in the normative sense–it would be pointless to ask what the source of positive law is: we already know: it is the courts and the legislature. What people are asking is: what makes proposed law X (or your external standard by which you are judging actual law Y as unjust) justified? Now, I think in some sense, to merely ask the question: what is the source of (natural) law, or rights, is positivist: it implies that just as the legislature can decree, or “make,” positive law, so God, say, or nature, is a “source” of laws. They “emanate” from some decreeing agency. They think this is not positivistic because it is a higher law than the state, but in my view it is almost as problematic because it views rights as some created, arbitrary decree. I do not believe God can decree evil to be good, or murder to be just, or 2 to be 3. God is “good” by assumption, but the standard of goodness is external to God. He is good–he does not define goodness. Goodness is not whatever God is; rather, the idea is that (we are lucky that) God happens to be a just, good god.

So, if we ask what is the source of rights–the ones we libertarians are in favor of–then we are asking: why do you think this law or right is justified, or good? What reasons do you have? And Gene, those reasons are not “because they arose through human practice.” Rather, we usually criticize positive law that did arise thru human practice, as being unjust, as failing to comport with some ideal justice, for such-and-such reason. These reasons are varied–they range from utilitarian and consequentialist, to religious, intuitionist, deontological, what have you. My personal view is that Hume’s is-ough gap is a real problem, and that norms cannot be derived from descriptive facts. They can only be built upon other norms, and if you trace this back you have to start from some voluntarily chosen value–I sometimes call these grundnorms. What values, and chosen by whom? I think they are the base norms that underlie one’s choice to be part of a civilized community–honesty, independence, empathy, respect, cooperation, peace, prosperity, truth, consistency, and so on. True, not everyone values these. But it is is to and among the fellow community of “civilized” fellow people that we appeal to and reason with. We can appeal to these common grundnorms as a starting point, because anyone we discourse with is necessarily adopting at least these–which is why I see value in the basic Hoppean argumentation ethics approach that you have criticized.

I am not here trying to justify this approach, but merely to explain why I think it’s wrong to simply relegate normative questions about the “source” (justification) of law (rights) to observations about how positive rights do or have arisen “in human practice.”

You buyin’ it?

Roark December 9, 2009 at 5:15 pm

Without the bath-tub, there’s no “Eureka!”
Archimedes was a parasite.

Stephan Kinsella December 9, 2009 at 7:30 pm

I object above to Mossoff’s groundless accusation that I (and Tim Sandefur) mischaracterized his views. Tim Sandefur (rightly) objects as well, over on Hsieh’s blog. I agree with Sandefur. He writes:

I have written to Prof. Mossoff privately to complain about this, but I would like to say here also that I am truly astonished to be accused of purposely misrepresenting his arguments. I have not given him or anyone else a basis for accusing me of intentional dishonesty–yet without his having any evidence whatsoever for the charge, he not only accuses me of this, but says that this alleged dishonesty is “unsurprising.” I would like to know what basis Prof. Mossoff has for accusing me of purposely misrepresenting his views. If I have misunderstood him, then I’ve misunderstood him. But for Prof. Mossoff to accuse me of dishonesty is another thing entirely, and I would like to see him either apologize or provide some foundation for his accusing me of dishonesty here.

If the only basis for his accusation of dishoesty is that I relied on the article of his to which he refers, I can say that the reason why I cited that article is because it was the only article of his on the subject that I was aware of when I wrote. I do not believe that I misrepresent his views from this article, but if I do, I look forward to an HONEST correction presented in a collegial and scholarly manner, and NOT to accusations of purposeful dishonesty for which he has NO EVIDENCE WHATSOEVER.

This incident reminds me a bit of when David Horowitz, whose magazine had accused Pat Buchanan of racism (archived copy), was himself accused of this by the PC police (see here, here, here, and here). Similarly, Sandefur is now at the receiving end of the kind of unfair, groundless accusations he makes against some libertarians who hold a different view on Constitutional and secession-related issues. Perhaps this will give him cause to rethink the propriety of doing this in the future.

iawai December 9, 2009 at 11:03 pm

I tried to represent; I was hit with the rejoinder that Objectivists merely want the State to defend “life, liberty, and property.”

If we all agreed on the proper way to defend these things, and indeed on what life liberty and property ARE, I don’t think we’d have a problem. Unfortunately, these concepts are slippery (subjective) and enforcement non-homogeneous, and thus no Objective (capital O) State solution exists.

Dewaine December 9, 2009 at 11:44 pm

My face is copyrighted.

Kerem Tibuk December 10, 2009 at 12:29 am

For the record,

[DELETED]

Non-Dewaine December 10, 2009 at 4:51 am

Dewaine: “My face is copyrighted.”

And thank god for that!

newson December 10, 2009 at 5:05 am

from the mentioned blog:

“I think I found the critical flaw in Mr. Kinsella’s reasoning, and it’s his creation argument.
For example, he states:

“And suppose you carve a statue in someone else’s marble �” either without permission, or with permission, such as when an employee does this with his employer’s marble by contract �” then you do not own the resulting statue, even though you “created” it.”

You didn’t create the statue. You created labor and traded it to the employer for money. The employer used that labor to craft a statue out of his marble. You were a vicarious chisel in HIS hand.”

this is what we’re up against.

scineram December 10, 2009 at 5:08 am

Objectivists are hilarious. They are like a distinct subspecies of mankind. From just one sentence you can tell someone is an objectivist. Who else would compose a sentence like that:
Anarcho-capitalism, which is a floating abstraction, cannot be defended, nor can it be properly attacked, since it rejects established rational principles and it does not recognize the most fundamental law of logic, namely, the Law of Identity.

I mean, blog posts are tagged “A IS A” for fux sake!

Jay Lakner December 10, 2009 at 9:19 am

I have not once seen an objectivist (or anyone for that matter) logically deduce the need for IP from fundamental starting principles. The reason: it can’t be done. The granting of ownership to something intangible is an unneccessary and arbitrary step to take.

Stephen Grossman December 10, 2009 at 10:21 am

>[Jay Lakner]I have not once seen an objectivist (or anyone for that matter) logically deduce the need for IP from fundamental starting principles.

Rand rejects rationalism’s floating abstractions for perception-based reason. Principles are induced from concretes. Her inductive proof of property rights is scattered throughout her work. See the online Ayn Rand Lexicon. Eg,

The source of property rights is the law of causality. All property and all forms of wealth are produced by man’s mind and labor. As you cannot have effects without causes, so you cannot have wealth without its source: without intelligence. You cannot force intelligence to work: those who’re able to think, will not work under compulsion; those who will, won’t produce much more than the price of the whip needed to keep them enslaved. You cannot obtain the products of a mind except on the owner’s terms, by trade and by volitional consent. Any other policy of men toward man’s property is the policy of criminals, no matter what their numbers. Criminals are savages who play it short-range and starve when their prey runs out—just as you’re starving today, you who believed that crime could be “practical” if your government decreed that robbery was legal and resistance to robbery illegal. ["Galt's Speech," _For the New Intellectual_]

PirateRothbard December 10, 2009 at 10:33 am

This is one funny Randroid nut.

here.

Jay Lakner December 10, 2009 at 11:04 am

Stephen Grossman,

What you have written is not any sort of demonstration why intangible constructions should be considered property. It needs to start from fundamental assumptions and demonstrate through logical deduction why both the tangible and intangible need to be considered forms of property.

Consider the following.

Everything in the universe falls into two categories, the tangible and the intangible.

Tangible entities include rocks, water, air, iphones, computers and, of course, human beings.
Intangible entities include ideas, patterns, configurations, stories and concepts.

Intangible entities are a construct of the mind. The brain, which is composed of tangible materials, fires neurons in a specific pattern or order which represents the intangible construction.

In order to survive a human must act. But what is action?
Action is the transformation or manipulation of tangible materials.
Transformation, rearrangement, manipulation, etc are intangible constructs.
Therefore all human action is simply an application of intangible constructions to tangible materials.

If there exists more than one human being, we encounter problems.
Multiple human beings can all use the same intangible material.
But multiple human beings cannot all use the same tangible material.
Why? Because tangible materials are limited in supply. They are scarce.

Hence we encounter contradictions when multiple human beings each wish to drink the same molecules of water, eat the same apple or use the same logs of wood to build their shelters. Multiple use of the same tangible material is impossible.

This is what leads to the concept of ownership. We need a set of rules to determine how the tangible materials in the world are to be split up and shared amongst the human population.
Hence the concept of property rights is born.

In order for peaceful cooperation between humans, we forbid the confiscation of another’s property. This means that rightful ownership of property is determined by time. In other words, an earlier owner of property has a more rightful claim to that property than a later owner. If we follow this concept to it’s logical conclusion, then the individual who owns the property first has the rightful title to that property.
This is the logical justification of the homesteading principle, that the first owner of a material good has the most rightful claim to it. Notice that this implies that every human being owns their own body because they were the first to occupy it.

Property rights are the reason for the non-aggression principle. One individual is not entitled to adversely affect the property of another individual. It would be a clear violation of that individual’s property rights.

But what about intangible entities? Do we need to assign ownership to intangible entities?
There are no contradictions when multiple individuals use the same intangible construction. Why? Because intangible entities are not scarce. Hence there is no need to invent the concept of intellectual property rights.

But let’s say that a society does grant ownership to intangible constructions. Let us try to work out what the result must be.
Remember, action is the application of intangible constructions to tangible materials.
Therefore, to grant ownership of an intangible construction to an individual is to limit the actions of every other individual. This is clearly limiting human freedom.
Each time an intangible entity is designated as someone’s property, every other human being loses freedom. They lose the right to apply an additional intangible construction to their tangible materials. Each successive designation of intellectual property enslaves the human race a bit more. The ultimate result is slavery.

It should be clear that if you assigned an owner to every single intangible construction ever imagined, then human beings would not be able to act. For example, the person who owns the concept of ‘drinking’ can forbid others from applying that concept to their material good ‘water’ and everyone who couldn’t afford the monopoly price for using that concept would die of thirst.

The human freedom and cooperation that does occur in such a society centres around those intangible constructions that are free for everyone to use.

So where do you draw the line? Which intangible constructions can be owned and which cannot be owned? Any line drawn is a completely arbitrary line.
Adding time limits to ownership of intangible constructions seems to be the current solution favoured, but any time limits developed must also be an arbitrary decision.

Fundamental principles clearly demonstrate that not only is “intellectual property” an unnecessary and completely arbitrary step to take, but ultimately is simply a form of slavery.

That is why I would like to see an objectivist demonstrate, from sound fundamental starting assumptions, why it is neccessary to assign ownership to intangible constructions.

Peter Surda December 10, 2009 at 11:16 am

@Stephen Grossman:
> The source of property rights is the law of causality.
Yes, this is in my opinion one of the valid approaches to property right definitions.

However, while causality is a necessary condition for property, it is not a sufficient one. If it were, any action of person B causally relation to a previous action by person A would require the permission of person A.

For example, replying a post on a blog would require that poster’s permission, since they are causally related. Even further down the line, once an idea of person A gets into the head of person B, it becomes part of his thoughts and anything person B subsequently does is causally related to the that idea. If ideas were property, the causality principle requires the ownership of other people, i.e. slavery.

Jay Lakner December 10, 2009 at 11:40 am

PirateRothbard wrote:
“This is one funny Randroid nut.

here.”

I went to the link and read the article. The basic argument is summed up by:
**********
Whether a thing is intangible or tangible, if it has value, it is considered a property. If one is willing to pay for the idea of another person, that thing which is the subject of payment is considered a property. **********

The author of the article defines property as: anything that has value.

The entire case of the author is dependent on this completely flawed definition of property. Not only does it completely ignore the differences between tangible and intangible entities, but also allows us to regard non-existent things as property and inaction as property.

If I value the fact that gigantic space elephants don’t exist, that means the non-existence of gigantic space elephants is property.

If I’m willing to pay someone money not to sing, that means I value that person not-singing. Therefore not-singing is property.

If I value things that don’t smell like poo, then that means not-smelling-like-poo is property.

The use of such a broad definition of property, which ignores the fundamental differences between the tangible and intangible, as a starting assumption to one’s philosophic view of the universe must lead to inaccurate conclusions.

iawai December 10, 2009 at 11:42 am

P. Surda:

Causality is one of three necessary and sufficient conditions for property, the other two being subjective future desire and an extent of control over the caused change to ensure the desired future value.

The result you draw is exactly correct: IP requires making a property claim in the will of people, which is obviously slavery.

This isn’t to say that people can’t be property, but obviously this is unjust, just like claiming stolen goods as your own property may be technically legitimate in defining property, but is based on an aggression, and therefore unjust.

You want to claim property in your created ideas? Great! The burden is on you to control that idea from intrusion or diffusion. Be warned, if you limit the liberties of others, you will be open to judgment against you. Trade secrets are a valid use of “IP”, but public broadcast places that property in the control of the uncontrollable masses, and any later attempt to reclaim that IP is, as noted, a degree of slavery.

Ryan December 10, 2009 at 12:54 pm

Gene Callahan seems to be the only one thinking clearly here.

There is no “source” of property rights in the sense of deducible logical atoms. Whether you like legally protected IP or not, you’re never going to “prove” that IP ought or ought not be protected.

I find the question really fascinating, though, and I have yet to come to a firm decision about it. If a musician doesn’t have ownership of the songs he/she writes, then what’s the point? I think IP is society’s way of saying that originality is important. I will concede that it is a factual monopoly, however.

I appreciate everyone’s comments here. I’m still undecided. Good topic.

DixieFlatline December 10, 2009 at 1:57 pm

Ryan,

Creation is an act of labour, whether it creates property or not.

Deefburger December 10, 2009 at 2:43 pm

Possession precedes Property. Possession must exist fundamentally for the idea of Property to have a basis. Property without the physical manifestation of Possession is non-existent. The Physical Being holding the thought is the physical manifestation of the intellectual property.

Prior possession, then, is the basis of Property, even when that property is no longer in possession. Again, time is involved. But the basis of any argument for prior possession, and the retention of the intellectual rights of property, depend on the method used to change the circumstance of Possession. If force is used to gain possession, then the Intellectual claim of property of the victim stands. If contract or agreement is used to obtain possession, then the intellectual property claim does not stand, as there was no victimization by use of force.

The right to ones own self is based upon the fact that no one has ever been, nor ever will be, in direct possession of the self, other than the current Being.

Even if, especially if, that Being is himself possessed by imprisonment, the actual possession of the self is still absolute. Again, in this case especially, the use of force nullifies any claim to ownership by the current possessor.

Force decides the position, but defeats itself in the decision of Intellectual property. The force itself gives the intellectual property the weight of Physical importance, without the means of physical manifestation.

But to extend this to Intellectual Property itself, outside of physical possession, is to assume a physical object where only a non-physical object exists. To use force to prevent the possession of thought, ideas, or any non-physical objective is to nullify any right to it in the act of the use of force.

So, even though one might claim possession of intellectual property, one cannot use force to maintain it, since the use directly violates the possession of the non-physical object possessed by the other, without actually removing the possession. No force is needed to maintain possession of the thought already in possession. No force can be applied that will remove the possession from ones self, or ones opposition.

Natural Law of Intellectual Property is multiplicative. Unlike Physical manifestation, intellectual manifestation of an object or arrangement of objects is without bounds.

Intellectual Possession can only be proved through the act of voluntary duplication. Either by sharing the thought, or drawing or writing it, or in some way manifesting it in the Physical, so that it can be observed.

But once observed, it is multiplied. Only voluntary agreement and subsequent adhearance to the agreement can prevent it’s further spread. It must be kept from observation, to rightly hold it’s complete possession. No force can be used, physically, to prevent this. It is natural for ideas and intellectual objects to multiply upon observation.

Identity is the only form of Intellectual property that is in exception to this general rule. Identity is tied directly to the ownership of self. The identity of an individual is a collection of possessions, traits, uniqueness, that distinguishes one individual from another, and is a requirement of any claim of property, physical or non-physical.

Identity, to be useful, must be shared, but remain unique. The importance of this is not lost in Nature.

A look around at the goings on of plants and animals shows the Natural manifestation of Identity and it’s use everywhere you look. Dogs pee on trees to spread the knowledge of their presence, and their identity. Birds sing unique songs, in unique ways, to establish the same ends.

Identity is the cornerstone of intellectual property, and physical possession is the basis.

But what of the idea? What about Patent, Copyright? These forms of Intellectual Property are NOT purely intellectual. They are manifest physically by possession and Identity.

But unlike physical objects that are outside of the self, they become unique by virtue of the mind that holds them, and the unique nature of the identity and experience of that mind, even if they are sourced by another mind.

Why? Because the observation, by whatever means, of the idea, is to have a unique experience of the idea that even the originator can not have. The two minds, one the originator and one the observer, have unique identities, unique minds, and unique experiences, including the experience of the idea.

So how can any claim of ownership, possession, reach into the minds of everyone else to impose a restriction on a particular thought?

Why even try? If the thought was that important as a unique possession, then it should never have been shared in the first place. The keeping of the secret is the only Natural Law recourse a mind can rely on to protect the possession of ANY idea.

Furthermore, the observation itself, by it’s very nature, rearranges the idea to suit the identity and experience of the mind that observed it. It is now a NEW unique possession. Any use of force to prevent it’s use, or physical manifestation, is a direct denial of self and self possession, and like the example of physical property, negates any claim, automatically.

It is only in claims of Identity that the use of force is justified, for any claim by one person to be another is fraud, and any gains made in that capacity are forfeit.

So now we tie our ideas to our identity and claim exclusive possession, via Patent or Copyright. We claim that any use of our idea is forbidden by our claim of identity. But this ignores the fact that every other observation of the idea is equally unique and identifiable! Any attempt to identify the same idea as expressed by a different mind is an attempt to extract the uniqueness of the observer from the observation! This attempt must find those aspects of the idea that are unique, in and of themselves, and therefore removes any identity from the idea, thus rendering it without possession by any one mind! Again, force defeats itself.

Force, in metaphysics, only manifests as creation, the creation of thought.
Force, in physics, manifests as application of energy.
To attempt to employ physical force to exact a metaphysical outcome is folly.

So the defenders of Patent and Copyright claim that the force is one of contract. But in reality, the contract was made with everyone else in absentia! Hardly a useful tool, let alone an enforceable one. Add to this the nessesity of discloseure, and the originator defies his own need to secrecy in the publication! Metaphyisically, the filing of a patent or the publication of a work is creative expansion. Physically, it is the multiplication of ideal objects within unique minds by the creation of a physically observable example. Any attempts to extract the ideas from the experience of any observer is an effort to regulate physically the energy of the metaphysical.

It’s akin to praying that everyone who observes, forgets. Or relying on the force of Law to restrict the physical. You may think you have a right to the parachute, but if you don’t actually possess it when you jump, Natural Law will make sure you will not need it in the future.

James Hancock December 10, 2009 at 3:07 pm

The problem is that recognition of the altering of nature is not IP. It is the inevitable result of inquiring about our environment. That you got to it first gives you a leg up, it doesn’t guarantee you use. Drugs and our own human Genome are perfect examples of this, but software and other patents also apply. Even the light bulb fits into this category.

However, there is a form of IP that is valid to be protected. That is works of art. That is copyright. How you build something, the sum of all of those recognitions into a finished good, should be protected. If someone steals the exact thing, or something recognizably similar it should be protected, and it should be protected until such time as someone doesn’t request that it continue to be protected.

Patents are useless and even evil and do not serve any purpose both to the individual and to society (irrelevant) but copyright, when applied correctly is entirely valid.

Stephen Grossman December 10, 2009 at 3:59 pm

>[Jay Lakner]Stephen Grossman, What you have written is not any sort of demonstration why intangible constructions should be considered property.

“…a discovery cannot be patented, only an invention. A scientific or philosophical discovery, which identifies a law of nature, a principle or a fact of reality not previously known, cannot be the exclusive property of the discoverer because: (a) he did not create it, and (b) if he cares to make his discovery public, claiming it to be true, he cannot demand that men continue to pursue or practice falsehoods except by his permission. He can *copyright the book in which he presents his discovery and he *can demand that his authorship of the discovery be acknowledged, that no other man appropriate or plagiarize the credit for it—but he cannot copyright theoretical knowledge. Patents and copyrights pertain only to the practical application of knowledge, to the creation of a specific object which did not exist in nature—an object which, in the case of patents, may never have existed without its particular originator; and in the case of copyrights, would never have existed. ["Patents and Copyrights,” _Capitalism: The Unknown Ideal_, Rand]

Stephen Grossman December 10, 2009 at 4:31 pm

>[Jay Lakner]Stephen Grossman,
What you have written is not any sort of demonstration why intangible constructions should be considered property. It needs to start from fundamental assumptions and demonstrate through logical deduction

Rand rejects the rationalist assumptions/deduction method for objectivity, including inducing from perceived concretes. See Leonard Peikoff’s “Induction In Physics And Philosophy.”

newson December 10, 2009 at 7:37 pm

james hancock says:
“However, there is a form of IP that is valid to be protected. That is works of art.”

why? there is no completely new work of creation, only variations on a theme. see picasso’s copying of african art, velasquez (“good artists copy, great artists steal”).

Gene Callahan December 11, 2009 at 4:39 am

Stephan, I’m explicitly talking about normatively judging these things, and I am claiming that:
1) It can’t be done the way you and your objectivist targets are trying to do it, by deductively working from first principles; and
2) The attempt to try to so proceed produces barbaric results, such as Rothbard declaring starving your infant to death should be legal, or just plain nonsense, like Hoppe’s argumentation ethics.

Ethical decision making is a practical, not a theoretical, activity, and the right use of ‘principles’ in it is as reminders or rules of thumb, that must be carefully balanced and weighed against each other in reaching a decision. To make them ironclad ‘rules’ whose deductive consequences must be unwaveringly followed is to worship an abstraction.

Kerem Tibuk December 11, 2009 at 5:09 am

Gene Callahan,

Abstract deduction can be done regarding ethics, but unlike what you may think, actually deduction doesn’t require to be done once and produce general results (principles, rules) that are necessarily true in each instance (ironclad). That is actually Kantian ethics. Kantian ethics say if “lying” is generally (or categorically) bad, you may not lie even if your life depended on it. And no Objectivist claims this.

What Objectivism claims (and not only Objectivist, but Rothbard also uses the same method which actually Aristotelian), but the practicers (including Rand) sometimes fall short of, is that there is one objective method of finding ethical principles.

Yes, “lying” is generally bad, but it is not an fundamental rule that trumps everything. It is just a rule that helps you to reach the higher goal, and if that higher goal is threatened the rule loses its usefulness.

The problem with IP socialism, and also Objectivism on certain issues like anarchism, is not their method.

The problem is sometimes using wrong axioms as in the case of Hoppean IP socialism and sometimes logical fallacies as in the Objectivist rejection of anarchism.

In short, logical deduction is valid method, and it is not used only once, to make iron clad rules, but has to be employed every time before an act. Survival of the man depends on it.

Ryan December 11, 2009 at 8:57 am

Kerem,

Anarchism is silly and completely impracticable. (Proof of its impracticability is that it has never managed to last as an enduring system of human association at any point in human history.) Objectivists (and basically any rational person regardless of their chosen philosophical schema) reject anarchism because its results fall far short of what is possible in a more structured political environment.

So one might be forced to “acknowledge” a supposed superiority of anarchism if you relegate yourself to an abstract philosophical world, but remember that a fundamental aspect of logic is that something may be both valid and false in the logical sense. You may create a logical system in which anarchism is valid, but you will never create one in which anarchism is possible. (In fact, I’d submit that anarchism is only possible for a hermit – as soon as more than one person exists in a system, human beings start interacting according to norms and rules, defined or otherwise, and true anarchism immediately evaporates.)

The propensity for some libertarians to embrace anarchism continues to baffle me.

Stephen Grossman December 11, 2009 at 9:52 am

Gene,

Deduction is applied to further inductions. Eg, one should be honest in a specific way relative to a specific situation. Rand condemns Kant’s rationalist morality of evading specifics for a subjective assumption which requires no further knowledge. She ridicules a homeowner who tells a thief the location of his valuables because he evades the context of applying honesty. After placing a specific situation in a general moral context, one induces from the specific situation and only then deduces a moral application. This is the pattern of how Newton discovered and applied universal gravity.

objectivist targets?

Man’s life requires moral principles (theory) to organize one’s knowledge of reality as a whole for guiding action. But sacrificing one’s life requires only an unfocused mind or, as you call it, rules of thumb.

Stephan Kinsella December 11, 2009 at 10:22 am

Ryan, “The propensity for some libertarians to embrace anarchism continues to baffle me.”

Minarchists and statists often word it this way to masque the fact that to NOT “embrace anarchism” means to endorse aggression. The anarcho-libertarian doesn’t “justify” anarchy. Rather, he opposes aggression, and therefore thinks the state, because it necessarily uses aggression, is criminal and unjustifed. So don’t say you don’t “embrace anarchism.” Say that you favor the state’s use of aggression–if that is really what you believe. And then see if you can justify it. You can’t say “well the state’s use of aggression against innocent victims is justified, because the anarchist hasn’t justified why I should ‘embrace anarchy.’” You have to be prepared to defend your endorsement of the state’s aggression. for more on this see my What It Means To Be an Anarcho-Capitalist.

Stephan Kinsella December 11, 2009 at 11:01 am

Gene:

Stephan, I’m explicitly talking about normatively judging these things, and I am claiming that:
1) It can’t be done the way you and your objectivist targets are trying to do it, by deductively working from first principles; and
2) The attempt to try to so proceed produces barbaric results, such as Rothbard declaring starving your infant to death should be legal, or just plain nonsense, like Hoppe’s argumentation ethics.

Gotcha. I was not clear you were talking normatively, it did not seem explicit to me.

Ethical decision making is a practical, not a theoretical, activity, and the right use of ‘principles’ in it is as reminders or rules of thumb, that must be carefully balanced and weighed against each other in reaching a decision. To make them ironclad ‘rules’ whose deductive consequences must be unwaveringly followed is to worship an abstraction.

that is all fine, but you are talking here not about how we get the rules or principles, but about what their content should be, and how abstract or general they should be. When we criticize something as being unjust–as you are doing here re the rule about starving a baby–you are using certain normative principles. You are assuming the validity or truth of certain norms, in your criticism. Right? Calling your application of your principles a practical matter or the application of rules of thumb does not specify where you get your grundnorms from, or how or why they are justified.

I believe that what you *do* as a “practical matter,” in “real life,” is you discourse with others and you appeal to commonly-held values. Most civilized people agree on X, Y, Z grundnorms, so you appeal to these as being uncontroversial foundations to build upon. (Certain criminals and misanthropes do not share these grundnorms, so you simply don’t waste time with them.)

I think the AE approach simply recognizes that this appeal or resort to commonly-shared values is inescapable. It recognizes that natural law can NOT “deduce” norms or values, from mere facts. It recognizes that you can ONLY appeal to values that others DO for some reason share. And it points out that some set of basic norms are always, necessarily, shared by participants engaged in peaceful discourse. What do you disagree with here? What is “deductive” or “impractical” about this?

Ryan December 11, 2009 at 11:33 am

Stephan,

In an imaginary world in which “state” is synonymous with “aggression” or “force,” I would agree with you. The problem is that this world is imaginary. These two (or three) words are not synonymous and never will be. Rand at least suggested that the state is the only entity for which brute force is legal, but that falls far short of equating the two terms.

Furthermore, there is a huge difference between rules and force. Anyone who plays basketball or any other game will attest to that.

However, I am willing to admit to the possibility that our only meaningful disagreement is with the term “force.” It may be that our view of the optimal political society has more similarities than differences.

Stephan Kinsella December 11, 2009 at 1:35 pm

“Ryan”:

In an imaginary world in which “state” is synonymous with “aggression” or “force,” I would agree with you. The problem is that this world is imaginary. These two (or three) words are not synonymous and never will be. Rand at least suggested that the state is the only entity for which brute force is legal, but that falls far short of equating the two terms.

Furthermore, there is a huge difference between rules and force. Anyone who plays basketball or any other game will attest to that.

However, I am willing to admit to the possibility that our only meaningful disagreement is with the term “force.” It may be that our view of the optimal political society has more similarities than differences.

There is nothing wrong with force per se. Randians propertly recognize man may not initiate force. This is called aggression. It is aggression that libertarians and Randians oppose, as it is the only way to violate rights.

Force that is consented to, or that is in response to initiated force, is perfectly legitimate.

The problem with the state is that it engages in aggression. You cannot oppose aggression, and favor the state. PEriod. IF the “state” does not commit aggression, then it is not a state, and we do not oppose it. You say that you oppose taxation. This is not really true, because your alternative funding mechanisms are either ridiculous and non serious (a lottery!?) or tantamount to a tax (charging a contract enforcement fee–after monopolizing the courts! … say, I guess the price charged will be Objectively Reasonable!). If your state outlaws competing defense agencies, it does this by committing aggression to stop them. Once it does this, it’s the only game in town. This permits it to charge monopoly prices, and to provide bad service. Anyone who is aware of the problem of state monopolies knows this. Any person who wants protection and justice has no choice but to use the state, and pay whatever fees it sets. This is the same as a tax, and in any event is aggression.

If you do not support this, surrpise–you’re an anarchist too! If you do support this, you cannot claim to be against the initiation of force. Choose.

Ryan December 11, 2009 at 2:01 pm

Stephan,

You are definitely winning the argument you are making, but you are not arguing with me. You are redefining some terms that I might use, and then you promptly defeat the argument you have claimed that I must make. The problem is that I am not making that argument, nor is it necessary for me to do so.

You have imagined a necessary link between government rules and aggression. Soon enough, your argument devolves into meaningless abstraction. For example, is a state-imposed law against murder an act of aggression against would-be aggressors? By your line of reasoning, I think such a debate could go back and forth for some time. The problem is, that debate has no connection to the real world.

A rule may or may not be an act of aggression – that depends on the rule. I wholly reject your package-deal fallacy that a system of government is synonymous to an act of aggression. Here is another example of something being both logically valid and logically false.

Stephan Kinsella December 11, 2009 at 2:07 pm

Ryan, you are evading the issue.

Do you or do you not support the state using force to outlaw competing justice agencies? It’s simple yes or no. If yes, then you support aggression. If not, you are an anarchist like me. No amount of squirming and evasion can change this. Choose.

Ryan December 11, 2009 at 2:32 pm

You seem unaware of the fact that you are committing both a straw-man fallacy and a package-deal fallacy… In any case, I can’t help you see it, and I’m unwilling to answer either “yes” to something I never said or “no” to something I don’t agree with.

And I’m saying this with full recognition of the fact that saying so will have convinced you to your own satisfaction that you have “proved me wrong” somehow.

But tell me – are you in the habit of badgering people into false dichotomies during the scope of a good-hearted discussion?

ABR December 11, 2009 at 7:26 pm

Note to Ryan: have a look at Joe Peden’s article on this site.

http://mises.org/journals/jls/1_2/1_2_1.pdf

He describes Ireland as having existed under anarchy for a thousand years. [Anarchy = absence of the State, not the absence of government.]

Comments on this entry are closed.

{ 3 trackbacks }

Previous post:

Next post: