If you maintain that I do own an idea so long as it is private to me, then you could also say that i “own” my memories, and even some bare facts that are known only to me. For example if I have discovered the largest prime number then I “own” it so long as I don’t tell others. This makes no sense.

Also, I think it is misleading to say that you “sell” ideas. What you in fact do is make an agreement with someone whereby they agree to transfer title to certain property (like money) to you, IF you do such-and-such (like convey information to them). It is simply a conditional transfer of title to property. Using conditional title transfers, you can in effect “sell” services or ideas, but this is just misleading metaphorical lingo. I discuss a lot of this in my articles on contract theory, all available here.

Likewise, I also think a problem arises with the notion that we own things that we create; and with the Lockean idea that we own things we “mix our labor with” because we own our labor and “therefore” we own things we mix our labor with. Again, confusion and misleading metaphors. Let me be clear. As I have pointed out in my “Against Intellectual Property” article, “creation” is neither necessary nor sufficient for ownership in a given scarce resource.

Finally, I think there is confusion caused by overuse of economists’ concepts in a legal/ethical discussion. An economist might regard services or labor or ideas as a “good” if they can be “sold”. I don’t know, and I don’t much care, in this context. In the current discussion, only scarce resources are property; only scarce (rivalrous) resources can be owned. Other things may be economic “goods” if money can be obtained for them or if they are valued, but that does not mean they are literally “sold” or that they can be owned. A pretty model might be able to “sell” her “looks” but does she really sell her looks? No. She obtains money by agreeing to perform certain actions. Does she “own” her looks? No. Her looks are not a scarce resource; they are an attribute of a scarce resource (her body). Likewise, one does not own one’s labor; labor is not a scarce resource; it is action performed by a human being; it is what one does. Action is not ownable.

***

So, now let me turn to some recent posts, in view of the comments above.

Bourbon:

I’m confused again. How can I sell or steal something that can’t be owned?

You can’t.

quincunx:

Well you certainly owned that statement before you told everyone.

I don’t agree. Ownership means right to control a scarce resource. Statements are not scarce resources.

bourbon:

Okay, I am focusing on Kinsella’s argument that a thing is not ownable unless it is scarce. Since an idea can be used simultaneously, it is by definition not scarce, and therefore not ownable. Are you arguing that an idea is scarce until published, and the act of publishing it renders it not scarce? What if we have simultanious ideas that we do not publish? Do they remain scarce, and therefore ownable?

I understand your confusion; it is caused by the notion that ideas are ownable when they are private but not ownable after publication. This notion is indeed confusing, and untrue. Ideas are never ownable. Only scarce resource are. Ideas are not scarce (rivalrous) when private and then non-scarce thereafter; they are never scarce.

To sell an idea I have to publish it, and by the very act of publishing it, it is no longer ownable. Again, how can I sell something that is not ownable? Very confusing.

Again, your confusion is caused by the sloppy use of misleading descriptions and metaphors by laymen and economists who conflate economic concepts with legal ones. Ideas are never sold, technically speaking. Where an idea is “sold,” what this means is that the “buyer” simply agrees to transfer to the idea-originator title to some money, IF the idea guy performs certain actions (like handing over a disk with certain information on it).

quincunx:

An item does not need to be scarce to be ownable. I own my physical actions and my thinking. They are not scarce, but I certainly own them.

Again, as noted above, I think this is an imprecise and confused way of looking at it. You do not own your actions and your thinking. It makes no sense to even say this. To own is to have the right to control a scarce resource. Now you certainly have the right to control your body–which is to say, your own yourself–and this implies, practically, the ability or power to manipulate it in certain ways and to profit from it, and to decide whether or not to speak about or reveal certain information or knowledge you have. It also gives you the power, say, to decide whether to drink tea or milk; or the power to (decide to) mow the lawn. But it would be nonsense to say that you therefore “own” mowing the lawn; that you “own” choosing-to-drink-tea-or-milk, that you “own” information you possess. You own your body. What you do with it is up to you.

To sum up my position:

Scarcity exists.
Scarcity is a subset reason for ownership, Scarce items can be exclusively owned.

Things that fall outside scarcity, but are ownable include ideas and discoveries.

EXPRESSIONS of ownable but non-scarce things CAN become the realm of the scarce, but the ownable non-scarce thing itself can never be scarce (by definition).

I think this is confused and flawed.

Your body is certainly scarce – either you are in control of it, or you are not. You don’t share control with someone else. It can only be in one place at a given time (corporally). So your body is scarce, which makes your actions with it scarce.

Now, your thinking, well, that gets into all kinds of philosophical questions that I find akin to arguing the number of angels on the head of a pin. But I’m comfortable with saying that your brain is the source of your thoughts, so your thoughts are scarce in that manner. Which is why patent law, and to a certain (lesser) extent current copyright laws are among the most fundamental violations of your property rights (on a level with slavery!). Essentially, patent rights (and to a lesser extent current copyright) steal your right to the results of your labor when you think a new idea and set about implementing it with your own labor.

EXPRESSIONS of ownable but non-scarce things CAN become the realm of the scarce, but the ownable non-scarce thing itself can never be scarce (by definition).

Scarcity exists.
Scarcity is a subset reason for ownership, Scarce items can be exclusively owned.

Things that fall outside scarcity, but are ownable include ideas and discoveries.

EXPRESSIONS of ownable but non-scarce things become the realm of the scarce, but the ownable non-scarce thing itself can never be scarce (by definition).

I think what he meant is that you can’t have exclusive ownership. You can have an idea, I can have an idea, Kinsella can have an idea – which each party owns – despite the fact that they may be the same idea.

“Since an idea can be used simultaneously, it is by definition not scarce, and therefore not ownable.”

An item does not need to be scarce to be ownable. I own my physical actions and my thinking. They are not scarce, but I certainly own them.

“Are you arguing that an idea is scarce until published, and the act of publishing it renders it not scarce?”

No. An idea is not scarce, but having to express it in a physical form or as an oratory service makes it a tradable good (scarce).

Okay, I am focusing on Kinsella’s argument that a thing is not ownable unless it is scarce. Since an idea can be used simultaneously, it is by definition not scarce, and therefore not ownable. Are you arguing that an idea is scarce until published, and the act of publishing it renders it not scarce? What if we have simultanious ideas that we do not publish? Do they remain scarce, and therefore ownable? To sell an idea I have to publish it, and by the very act of publishing it, it is no longer ownable. Again, how can I sell something that is not ownable? Very confusing.

Let’s not forget that ideas are mental constructions. If two people listen to the same piece of music or watch a movie, different things are going on inside their heads. A “movie”, a “TV show”, a “performance” are, physically, just movements of particles.

This makes it even harder to even thinkg about having the “same” idea. How can one even compare if they are the same?

Kinsella makes the point that only things that are ownable, that is, things that can be exclusively (and this implies scarce, otherwise it would not be exclusive) owned by one and not the other, can be considered property. Otherwise, there would be no conflict at all.

Thus, if I make a copy of something, with my own property, the original has not been affected and nothing has been stolen. The “movie” is not the DVD, for example. Those are just bits of plastic, which CAN be owned by someone (I can own plastic; it is scarce). The “movie” is a bunch of mental processes going on inside one’s heads.

Now people are free to argue it, quote it, make a derivative comment, and so on. What can you do about it? (yes I know it was just a simple statement)

Well you can sell an idea. All you need is a buyer. Certainly you can’t just sell an idea – you need to express it one way or another, be it on paper, in a journal, book, or podcast.

” And under such a system based on scarcity, producers would take great efforts (such as Coke) to keep their innovations secret so as to monopolize a process and reap the rewards of applying the process to the improvement of concrete goods. Am I getting this?”

You are, but you are drawing the wrong conclusion. Anyone can still reverse engineer a given product. You also can’t stop those who already have the idea (there are other cola manufacturers). What good is telling everyone about something, and then using force to prevent them from implementing it?

Wait. I’m confused. If “Superman” becomes your property, then wasn’t it property already? And if it was already property, aren’t you the one who sole it first? Or is the argument that once someone makes a competing claim on your use of “superman” it becomes property? Still fuzzy on how scarcity converts a thing into property. When did “Superman” become property?

Yes, you are confused. I never said Superman becomes my property. I only said in the example that I wanted to use my paper and ink to write and sell a comic about the adventures of Superman and Kinsella. I never implied that I thereby “owned” Superman. If I prance naked in my back yard I don’t thereby own “prancing naked” either, do I?

Imagine a world where if you want to buy a Mickey Mouse doll, you can buy it from Disney, or you can buy a cheaper version from a Chinese company. No one “owns” the idea of Mickey Mouse. There might be a dozen independent companies out there publishing their own adventures of Superman. So what?

Yes, you are confused: no one said scarcity “converts” anything to property. Rather, what we said is that scarce resources–and only scarce resources–are such that they may be owned.

Stephen I totally agree as you show in all your examples that IP can be abused to restrict freedom …but what if I just make copies of the famous movie Bonnie and Clyde and start selling it without paying any royalties. Isnt that also theft? Do we have to eliminate the whole IP system because it has potential for abuse?

It’s only theft if IP is property, which is what is under discussion. I fail to see how it is theft. In some cases the copier could be under a contractual obligation to pay monetary damages to the movie company if he breaks his contractual promise not to copy it. But not every copier would have privity of contract with the original maker.

Sure. Say I own my paper and ink. I am generally aware of the famous plot of the movie Bonnie & Clyde. Or of the character Superman. I feel like writing a book on my take on B&C–teh further adventures of bonnie & Clyde. Or, I want to write a comic, “Superman & Kinsella”–about the adventures of Superman helping out libertarian adventurist Stephan Kinsella. The Bonnie & Clyde, and Superman, copyright holders and prevent me from using or selling my own property in this way.

Or, suppose I own a car, and a carburator. I am aware that it is a fact that if I adjust my carbeurator *just so*, that I will improve my gas mileage. Unfortunately, someone 15 years ago filed for a patent on this “method of improving gas mileage” and they can literally prevent me, by force of an injunction issued from a court, from twiddling the knobs on my own carbeurator of my own car in my own driveway using my own hands.

So yes, by asserting IP, the copyright and patent holders are seizing partial control of my own property–my paper and ink, my car, etc.–resources which, yes, I already own. Well, I should say, “owned,” since now I am only a co-owner–the IP owners have now become co-owners with me of my things, since they, and I, now have joint control of these things.

the question of “identity” would not necessarily arise, since it is not something that gives rise to conflict

What about the distribution of a person’s genome, against his own will, for reproduction purposes, as in my example? No possible source of conflict in a sane mind? Is there a super-judge to decide what is a libertarian conflict of interest then?

HOWEVER, I would be very interested if you could cite me something of Hoppe’s where he sides with Rothbard on the question. It would be a real event, in my mind, to see how he could possibly do so.

My knowledge of von Mise, Rothbard or Hoppe is far too small, yet I see we’d both love to hear the opinion of this most prominent figure among all of von Mises’ followers. One of us should just send him this whole blog and ask him for a comment I guess…

Averros

The discussion of what exactly the property is, is quite informative, but the REAL problem with copyrights is not in what is considered property but, rather, in the fact that copyright owners choosing to “enforce” their rights do in fact steal from everyone else — including those who have no interest in or benefit from the copyrighted works. This is because they force all taxpayers to pay for the legal enforcement primarily for the copyright owner’s benefit. These costs are far from trivial.

I tend to agree on that one, but then let’s not mention “copyright justification”. Let’s just focus on mischievous State practices that are out of proportion with real economical situations…