Intellectual property is a concept that is inherently flawed. In particular, missing is the absolutism that is central to the ownership of property. And this flaw caused me to drop intellectual property as a requisite attribute of liberty.
The visit
A few weekends ago, my father-in-law came over for a visit. While we sat outside after dinner, he noted an issue he was having with a software package on his computer. He is technical, but not Google. Being from the era when answers were found in the manual or from support staff, he checked the manual and then called the software company’s helpdesk, all without result. He was rightly frustrated. I asked him to explain the problem. I took mental notes of relevant terms and told him I would have an answer in five minutes. A quick Google and a couple of clicks later and I found a message board with the solution. Problem solved.
Pet rocks
My three-year old collects rocks. Nothing special, just any rock he finds interesting. My four-year old occasionally raids the rock bucket, with the expected conflict soon following. My wife and I intervene and once again explain the house rules with respect to property. Theft is theft, regardless of the value of the item stolen.
Ownership of property is absolute. The market value, or any physical attribute (size, shape, beauty, etc), of the item is not a consideration. That is why we enforce the right to property under all circumstances.
The connection
When I discuss property with various folks, no one questions our house rule. Property is property, so to speak. However, when the discussion moves to intellectual property, the absolutism of property rights breaks down. Sure, the pharmaceutical company owns its patent. But the solution to the irritating computer problem that brightened my father-in-law’s evening is too small, too insignificant, to be owned by anyone. Government grants the pharmaceutical company a monopoly while the clever man posting on the message board is out of luck.
So we have a mishmash of laws that protect some forms of intellectual property and ignore of others. And the same person who says that all ideas have an owner has no expectation of owning the idea thus stated. It is crazy.
It is emotional
I understand the desire for a system of IP laws when considered from an emotional point of view. Yes, it seems right that an idea should belong to its owner, especially when the supposed owner is an entity that created a drug to cure a serious illness or a starving writer who devoted his life to the thoughts on the page. However, even sincere emotional arguments do not necessarily lead to valid conclusions.
Reductio ad absurdum
Physical property suffers the reductio ad absurdum challenge without fail – if you can homestead it or trade for it, no matter how small or insignificant the item, you can own it. Even subatomic particles are homesteaded and considered property. This is not to say our legal system adheres to the absolutism of physical property. But that is a flaw in our legal system; a our legal system based on utilitarian ethics and not grounded in the ethics of liberty. However, since defining an ethical system of property rights is our challenge, we do not need to justify the current instantiation of flawed positive rights, etc.
A system of property rights that protects my son’s rocks is valid and ethical. And by adopting it, liberty is enhanced, not harmed. The same cannot be said for intellectual property. A de minimis is implicitly assumed – a threshold that divides ideas that can be owned from those that cannot be owned.
A survey of IP laws shows thresholds that are various and arbitrary, with each area of IP law having its own threshold, or thresholds, for that matter. And these thresholds are, of course, matters of political action. And political action is always an unjustifiable force antithetical to liberty.
Conclusion
Liberty is the area falling outside the realm of political action. Therefore, IP laws, as a product of political action, and political action alone, do not enhance liberty. They harm it
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I agree with your assessment, but I’d like to point out a flaw in the physical property argument that I’ve been struggling with in the hopes that someone here has come to a good answer. Basically, the trouble I have with property rights isn’t the possibility of ownership, per se, but rather the means of acquisition.
It’s clear that if I buy something, or make something of things I have bought, that I should own that thing. So far so good. But when we come to natural resources, from whence all non-IP things are derived, I don’t really see the ownership generating act. I mean, why does my claim to a particular piece of land have any more validity than anyone else’s claim? And what does that mean for, say, the owner of a rare earth mineral mine – or some other scarce natural resource. No one built that resource. I can see an argument that someone owns the equipment and facilities constructed to extract the resource, and even that the resources so extracted are validly owned by the extractor. What I can’t see is an argument preventing another person from building their own facilities on the same land and extracting from it at the same time. Land rights seem to be fundamentally problematic is, I guess, my point. And since land rights seem to support the entire structure of property and ownership it’s hard for me to come to the simple conclusion that you did. Land rights seem to me to be the reductio ad absurdum for property rights.
If you abolish land rights, do property rights still work? Is the abolition of land rights in accordance with libertarian principles? If land rights are valid, what actions are required to establish those rights and to what extent are they granted?
Re: Rosy Carmichael,
Yeah, sure. Loggers don’t really add any value as the trees cut themselves into planks.
No one could use that resource without actually being there and exploiting it. The error in your thinking resides in your assumption that a good that is a resource is exactly the same good whether it is out of the ground or in, but that is not the case: Coal inside the earth is pretty much useless to YOU, unless you can tell me you can dig yourself a ton of it with your bare hands. Instead, coal that has been extracted by a mining company has value added to it, as now it can be used by you to heat your house or power your powerplant.
You can’t abolish property rights, even land rights. People that have tried that end up against the wall or with their heads rolling on the ground.
Dear Old Mexican,
Please be kind enough to read my comment before addressing its “flaws”. Your first two paragraphs do an excellent job of expanding on my point:
I can see an argument that someone owns the equipment and facilities constructed to extract the resource, and even that the resources so extracted are validly owned by the extractor.
But, neglect, as later comments have noted, the main point, which is:
What I can’t see is an argument preventing another person from building their own facilities on the same land and extracting from it at the same time.
An answer to that would be wonderful.
Pauli exclusion principle :v
I’d like if someone answered this part of your question: “What I can’t see is an argument preventing another person from building their own facilities on the same land and extracting from it at the same time.”
Also, when your son takes a rock from the ground and adds it to his collection is that considered mixing his labor with the rock?
Walter Block also brought up the fact that a farmer can plant crops very far apart on a piece of land so as to pretend to homestead it and claim he is mixing his labor with the land in an effort to claim ownership to a large part of land with minimal labor. This is called the continuum problem.
I’d like to see someone answer this part of you question: “What I can’t see is an argument preventing another person from building their own facilities on the same land and extracting from it at the same time.”
Also, when your son picks up a rock and adds it to his collection, is this considered mixing his labor with the rock? If no labor was added, does he own it?
The key is original appropriation the unowned resource. I can’t simply own an unowned piece of land by saying I do; I come to own it because I use it. The act of utilizing an unowned natural resource for the satisfaction of human desires constitutes original appropriation of that resource, and thus my ownership of it.
However, if I stop using that land, that doesn’t mean that someone else can simply move in, because I already own it. My homesteading of an un-owned resource makes it owned, and the only way it can become unowned again (and thus subject to somebody else’s original appropriation) is if I take the conscious act of renouncing my title to it or abandoning it.
I think I just very narrowly interpret “original appropriation”. If you make something on the land, I acknowledge your right to not have that thing destroyed, but I don’t acknowledge your right to prevent other people from putting their own stuff anywhere that doesn’t destroy yours. And I fully reject the idea that you would have a right to the contents of a vein of oar merely because you were the first person to burrow down to it. Subsequent burrowers share the right equally. Unless, of course, part of the property is the knowledge of the appropriate burrowing location, but that seems to be an intellectual property right… which we seem to agree is invalid.
*ore
I am not an expert in property by any means, but I do think I see an answer to the conundrum of land ownership. I think it is generally called the homesteading principle or theory or whatever. Anyway, it is first come first served when it comes to land ownership in that the homesteader acquires property rights or ownership by claiming and improving unclaimed land before anyone else. The requirement to improve the land would seem to be critical, otherwise claims would be, as they often have been, extravagant, with speculators staking out massive claims for the sole purpose of selling them to others at a profit, which is how much of America was first obtained by settlers from Europe. (Native Americans still question the validity of the European claims. Of course nothing is perfect, but it seems to me that private-property rights in land is the best alternative to common ownership or acquisition of property by means of aggression. Common or public ownership usually means government ownership and consequently political and bureaucratic control, which in theory and in practice results in relatively wasteful consumption or degradation of the land’s resources under the aegis of political as opposed to private ownership. Tribal ownership may have advantages. I suspect that a search of homesteading on this site would produce some articles by writers much more informed on the issue than I am.
I think that in most cases, land rights are very clear … if you homestead a piece of land by moving onto it and living there permanently, invest money in buildings, fences, mine shafts, clearing trees, planting crops, etc. then your possession of the land should be clear and indisputable. The boundaries of your land are established by the maximum extent to which you have plowed, fenced, cleared, tunneled, etc.
If you simply file a piece of paper somewhere claiming land, or if you receive a royal charter or other piece of paper which says that own the land, but you never homestead it, then your possession of the land is very tenuous and not likely to be respected by anyone other than the governmental authorities which issued your piece of paper.
The only part of land ownership that is controversial or unsettled (among libertarians anyways) is the question of seasonal or partial use of land. If once a year it happens that a herd of buffalo travel across a one-million-acre stretch of land, and a small band of people hunt the buffaloes for only a week or so, have they homesteaded the land? Do they own it? Is it fair if farmers move in and fence off and plow the land, thus denying the previous users of the land the possibility of ever using it again? If the answer is “yes” then you may be opening the door to anyone taking land from someone else, because (the new owners claim) they will use the land “more” than the previous owner. Anyone who owns an undeveloped woodland, empty lot, little-used vacation property or marginally-productive business would be in danger of being expropriated and evicted by someone who says that compared to themselves, the previous inhabitants’ use of the land is so insignificant that it does not amount to possession.
I believe that Murray Rothbard answered “yes” to the question of whether white settlers could take over the land of nomadic native hunters, but I’m not sure if this is the correct answer. By “correct” I mean, the solution which leads to the most harmonious and peaceful society. There was after all a genocidal war fought in the US great plains over exactly that issue. I think that a more peaceful solution would have been to scrupulously respect the property claims of the existing inhabitants – both their claims on the land and their claims on the migratory buffalo herds. Although their use of the land as measured in the value of goods extracted from it was insignificant compared to the value extracted by intensive farming and ranching, it nevertheless produced goods whose value was satisfactory to the people who considered themselves the land’s owners.
If their claims on the land had been respected, then over time the majority of these people would undoubtedly made a voluntary trade of their property and given up their nomadic lifestyle. The minority of traditionalist holdouts would have kept for themselves and their heirs what would amount to nature reserves. These reserves would have been far superior to the federally-controlled “national parks” which were only established long after the buffalo were wiped out and which are as mismanaged as only a commons can be.
It is of course a completely invalid argument to say that respecting someone else’s property is “holding up progress”. Progress towards what? Libertarians know that socialists calling themselves “progressives” are among the most dangerous politicians on earth. “Progress” is short for, “Give me your property or I’ll kill you”.
If there’s enough profit in doing so, then the property rights will be re-assigned by force if necessary. Life does not respect man-made ideas unless it chooses to do so. So why all the time spent nitpicking details that cannot be planned up front in a conflict-free way anyways?
Continuing the example of the US great plains, I think that force would not have been used on a large scale against the small group of economically marginal native inhabitants simply because of the huge amount of profits that could be realized by the settlement of farmers from the east. If not protected by the US Army there would have been pressure and sometimes conflict from individual settlers and their small groups, but mostly the settlers would have had to acquire land peacefully – or else they would risk being raided, burned out or slaughtered.
It is not “life” which inevitably led to the brushing aside of plains Indians, but a peculiar institution called the US government. This powerful elite had built up an extraordinary and unprecedented amount of financial and military power during the war against the south, and it used these powers to genocidally attack the plains Indians. Their murderous and thieving rampage was disguised as “progress” and “keeping the peace”.
The nitpicking as you call it is an attempt to discover what is real and valuable in human society and what is false and harmful. It is important to know whether the violent displacement of plains Indians by American settlers was a natural and unavoidable manifestation of the laws of economics, or if it was a simple act of banditry, disguised by the bandit leaders as “progress”.
Although Austrian economics calls itself value-free, I think that it is important to point out that the two possible ways of settling the great plains each had unique characteristics. The slow, piecemeal and cooperative method of settlement is characterized by relative peacefulness, and the interactions between participants tend to be honest and straightforward – guns traded for buffalo hides, money for land, etc. The other method of settlement (the one preferred by the US government) is inherently violent and deceitful, because the economic exchanges that take place are made at the point of a gun and they are accompanied by all kinds of deceptions – “as long as the grass shall grow” and other ironies. The Austrian School does not make a value judgement between these two activities, but every individual person must choose. Which would you choose, and which one do you wish that most people would choose, if they truly understood that their choice is between peace and honesty, and violence and dishonesty?
I would like to try to relate the story of the Great Plains to intellectual property. Selling someone a CD and then leaving them alone to copy or share it as they wish is both peaceful and honest – they respect your ownership of the CD by buying it, then you respect their ownership of it by not raiding their house and putting them in jail because they made a copy for their child’s MP3 player. The dishonest and violent approach to artistic and commercial ideas is to pretend that one can prove precedent and ownership of that which is immaterial and infinitely reproducible, and then to use armed police and prisons to enforce these alleged “rights”.
You could run a society either way – on peaceful/honest grounds or violent/dishonest and you could make the claim that either one represents progress or utility – but which way would a majority of people choose if they truly understood the choice? Actually I already know which way a majority of people have chosen, because they freely download, copy, perform and utilize other people’s “intellectual property” every single day with no feelings of guilt whatsoever. The dishonesty and violence emanates from a quite small, powerful and wealthy group of people. Is the existence of this violent and dishonest group of people essential to human society? I think not.
When I saw the section entitled, “reductio ad absurdum”, I was hoping for more of an argument, but I find the article enjoyable and useful nonetheless.
In an effort to provide a more useful comment, here is how I see the ownership of ideas. IP supposedly consists of ideas; ideas being non-physical are necessarily non-scarce. That which is non-scarce cannot be priced; therefore it is impossible to trade ideas. If someone offers to pay you for an idea, they are paying you for the service of explaining your idea; they are paying you to act and not for the idea itself. Their goal is to have your idea in their head, but the means of acquiring that idea is communication and not any sort of “handing over the idea”. There is a good reason that, “talk is cheap”.
Re: Joe,
That is exactly right. “Explaining” the idea would include technical specs, drawings, flowcharts or whatever is pertinent.
Re: Joe, Old Mexican,
I agree as far as this goes, but it seems that if I don’t require your communication in order to acquire “your” idea, I need not pay you. Ergo, intellectual property rights still don’t exist and shouldn’t be enforced. I’m pretty sure that’s what you were getting at, but I just wanted to explicitly make the point.
I humbly disagree with Jim Fedako. Even with physical property rights, there needs to be a cutoff point. Rothbard recommends the term “relevant technological unit”, for example.
The problem with IP is more subtle, it’s the inapplicability of the set theory to abstract concepts, which is caused by mutual inexclusivity, which is another word for non-scarcity. As Nina Paley aptly put it, if I steal your bicycle, you have to take the bus, but if I just copy it, there’s one for each of us. If you do not use exclusivity to determine property rights violation, then any act whatsoever for any reason whatsoever can be declared a violating property rights. Nothing demonstrates this problem better than the inability of the IP proponents themselves to come up with a coherent definition of their position. That’s the reductio ad absurdum.
You make a big mistake here regarding IP, since you ignore the role that ideas have when it comes to ‘physical’ property (by the way, this ‘physical vs. intellectual’ distinction is question-begging). My occupation, even ‘homesteading’ of some land only counts if I conceive of it as such, i.e. as my living on some land. When you respect my right over that land, you respect my conception of that land and my relation to it, i.e. my idea of myself as living there and having a right to it. The same goes for the children and rocks case: you are not enforcing one child’s right over the rocks unless that child thinks of the rocks as his or her own. ‘Physical’ property rights essentially depend on a complex conception of oneself in relation to a worldly item – this is an idea par excellence. This is the reason why we don’t consider animals to own things, despite their occupation of land, accumulation of twigs and so on (I’m not saying we’re right to think the relevant conception is lacking in the case of animals). The upshot is this: if ideas were the ethereal, uncountable items your analysis takes them to be, ‘physical’ property rights could not exist, and could not be observed or respected in the real ‘physical’ world.
That’s a fascinating analysis, Fruitplucker. I certainly agree that our sense of “property” is a intellectual construct, and relies on “ownership” which is inherently ethereal and exists primarily in the minds of the people involved in the discussion. However, there is certainly a difference between a physical thing and an idea. The situation in which you have the idea of “ownership” with respect to a physical object differs significantly from when you have the idea of “ownership” with respect to an idea.
I think the key difference, really, is one of scarcity. Physical things are scarce. Taking one deprives someone else of it. But copying ideas does not deprive the original idea-haver of that idea (though it may impact their ability to profit from the idea). It seems inappropriate to claim sole right to something that can be shared without loss.
Globalisation is transformation on how ideas travel and the nature of their final destination leading to increase in international trade thereby increased competition. Firms to expand by penetrating established markets to create new markets for their products. While expanding and penetrating newer markets!..
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