1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar
Source link: http://archive.mises.org/5960/new-working-paper-machan-on-ip/

New Working Paper: Machan on IP

November 30, 2006 by

Intellectual Property and the Right to Private Property by Tibor Machan (Chapman University)

Over the years there has been a debate among supporters of the free market concerning whether so called intellectual property is something to which one may have a private property right. One central element of the case, as advanced by some, is that because intellectual property is intangible, and tangibility makes what is owned rather easy to identify, intellectual “stuff,” such as a novel, poem, musical composition, or screenplay cannot be owned. This is not just some abstract exercise without concrete implications and applications. FULL PAPER

{ 15 comments }

Ross November 30, 2006 at 9:25 am

This author’s attempt to obfuscate the tangible-intangible distinction is amazingly weak. The question is entirely whether intangible idea can be owned.

David C November 30, 2006 at 9:43 am

One mistake I see around a lot of property philosophies is that they fail to center around “human action”. That is, the end in itself is not a perfect property, but optimum “human action”. For example, another using my property deprives me of choices on how I may use it. By engaging in a system of property rights, we optimize “human action” in a very natural and sociable way. However, copyrights and patents fail this test. Instead, their imposition tends to limit and control choices rather than optimize “human action”. In this setting the origin is irrelevant (other than by perhaps violating privacy or fraudulently taking credit) rather, me doing what I want with my copy does not control or restrict what anyone else does with their copy. It may change the supply demand status when it comes to selling to other people, but that is implicitly assuming a right to limit others choices to a specific distribution path to begin with. Once again, “human action” in this situation is controlled and limited rather than maximized and made the ends in itself. IMHO, the “human action” perspective is extremely important as society enters the information age. Because as time goes on and the cheap flow of information becomes more universal, the “human action” costs increase drastically for implementing copyright type systems.

Ezekiel Smithburg November 30, 2006 at 12:46 pm

The link to the PDF appears to be broken.

Carl Johan Petrus Ridenfeldt November 30, 2006 at 4:59 pm

Comparing ideas with smoke? Come on! Such an absurd comparison almost makes me wonder what Professor Machan’s head really contains, the former or the latter? (No disrespect intended.) ;)

Clearly, there is a clear-cut, objective difference between poems, songs, technological processes, and other “ideal forms” on the one hand and smoke particles and other more-or-less “physical intangibles” on the other: scarcity. Professor Machan and I can clearly both make use of a definite song (the “definiteness” is here accepted arguendo, regardless of the reality of the “fuzziness” involved in declaring two songs to be one and the same song) at the same time and in the same respect; we cannot, however, do the same with a definite soot particle. In the second case, use is rivalrous; in the first, it is not. Surely, this difference has important, praxeological implications.

Also, we may note the following: It is true that I might “create” something with my “human initiative” by applying an axe (as, say, performance art) on the furniture in Professor Machan’s apartment. Nonetheless, we do not expect the law to thereby grant me ownership of Professor Machan’s ruined sofa. Why is that so? The answer lies in the prior-later distinction: Professor Machan already owned the sofa; hence, it is no longer up for appropriation. If such is the case, how come that a myriad of poets, composers, and computer programmers are constantly allowed to appropriate partial rights to ownership over material (such as, e. g., paper, ink, and computer hardware) that is already in my legitimate sphere of ownership?

Remember, the advocates of “intellectual property” never favor “intellectual force” (whatever that is) to be wielded against “pirates”; instead, they are proponents of the quite tangible club, gallows, and bayonet. Food for thought, no?

Global Warmer December 1, 2006 at 6:52 am

Well said, Carl Johan Petrus Ridenfeldt.

Jim Fedako December 1, 2006 at 7:10 am

What does it mean to own the intangible? If I am in a great need of assistance and the only person around is someone named Rhonda, do I owe the Beach Boys royalties if I were to shout, “Help me Rhonda; Help, help me Rhonda,” in desperation?

Wild Pegasus December 1, 2006 at 9:43 am

If such is the case, how come that a myriad of poets, composers, and computer programmers are constantly allowed to appropriate partial rights to ownership over material (such as, e. g., paper, ink, and computer hardware) that is already in my legitimate sphere of ownership?

Say you practice rifle-shooting over an empty, unused field behind your farm. Someone moves onto the field and builds a house on it. Can you still shoot your rifle over the field?

- Josh

chanceH December 1, 2006 at 1:23 pm

Say you practice rifle-shooting over an empty, unused field behind your farm. Someone moves onto the field and builds a house on it. Can you still shoot your rifle over the field?

I could. You couldn’t though. I’m a descendant of Atok of the Bear Clan who orignally patented the process of “House Building”, and I inheirited all his intellectual property. Well, at first I didn’t inherit it, but Congress recently retroactively extended certain the lifespan of certain types of IP. So, by building a house without paying me the appropriate royalty, you forfeit all actual property claims.

quasibill December 1, 2006 at 2:00 pm

“Say you practice rifle-shooting over an empty, unused field behind your farm. Someone moves onto the field and builds a house on it. Can you still shoot your rifle over the field?”

No, but you can evict the person who builds the house, as you have assumed ownership over the field by using it (if you can, in fact, prove that you have been so using it). After you evict them, through the use of force if necessary, you can resume the use of your rightfully owned property.

Carl Johan Petrus Ridenfeldt December 1, 2006 at 3:01 pm

Wild Pegasus writes:

Say you practice rifle-shooting over an empty, unused field behind your farm. Someone moves onto the field and builds a house on it. Can you still shoot your rifle over the field?

A sufficient history of rifle-shooting over a specific stretch of land would surely entitle me to a rifle-shooting easement pertaining to said plot; so, yes, I would be entitled to continue my rifle-shooting activities.

The subsequent homesteader has moved to the nuisance. The nuisance has not moved to him. This is a rather easy application of the crucial prior-later distinction in libertarian property law.

averros December 1, 2006 at 9:54 pm

Huh? The paper is amazingly vague and irrelevant.

There’s nothing “in between” information and matter/energy – they are different physical entities. (Note that information relevant to the IP discussions is classical information, not quantum – quantum information cannot be copied).

Correspondingly, there is no “middle road” of consistent compromise between those who say that information can be owned and those who say that it cannot.

Artisan December 4, 2006 at 8:00 am

„The neighbor owner must be evicted and I m still allowed to fire my rifle for fun over his field like I always did (kill him perhaps?).”
Jeez. What a great way to extend your lawn under “libertarian” rule!

Either these examples are stated here to display the absurdity of some formulation of the concept of homesteading, or we can be sure that libertarian ideology will never be a threat to any form of modern political or socialist society!

My opinion: I’m happy in a way, that the IP debate has been re-centred on homesteading, since it seems to be the most problematic aspect of the libertarian property definition. It is subject to the most interpretation in any case… not just the major differences between Locke and Rothbard.

This being said: even a naked property can be assumed to host once in a while its owner. This proviso should be included in the land purchase act perhaps (I don’t see why there has to be a house?) Anybody who, in the name of homesteading, is shooting over the neighbor’s land, or threatening to evict the builder from a newly build house on that neighbor’s ground for that reason, can’t be quite a decent person. He can’t even argue he’s shooting “over” his head… since the bullet has to land somewhere… on another ground beyond (well OK perhaps it’s his too…) and prevent someone else to just “walk around” on his land.

I’m rather confident the same interpretation goes in fact for the building of an overcast roof over the neighbor’s naked land. Less the neighbor’s land is bought afterwards, but otherwise, the neighbor would argue he used to walk around and take a sun tan on his “naked ground” that’s homesteading of resource too, right?

quasibill December 4, 2006 at 10:40 am

artisan – you are question begging again:

“Anybody who, in the name of homesteading, is shooting over the neighbor’s land, or threatening to evict the builder from a newly build house on that neighbor’s ground for that reason, can’t be quite a decent person.”

It’s not “the neighbor’s land”! That’s exactly the point! It’s YOUR land, as you have homesteaded it! This is the problem with most IP proponents, such as Machan’s article – they are at best vague and non-commital, at worst disingenuous and self-contradictory. Either you believe in homesteaded property rights, or you believe in property rights that are granted by state decree. There is no middle road.

Heck, if I follow your heart-felt philosophy, please e-mail your address so I can build a house in your backyard. I can always use a vacation home somewhere…

And you (purposely?) misread my post – I said you evict them, not just continue shooting (although the more right wing types, like apparently CJPR, will claim you can do just that). I said you do everything you can to resolve it peacefully by evicting them, with the ultimate resort to violence if necessary – at which point THEY are the aggressors.

Artisan December 4, 2006 at 3:46 pm

Sorry Quasibill, possibly I misread your post. But I still cannot believe you’re serious, even if you only want to “evict” that neighbor. You must at least admit homesteading like you explain it is a bit confusing.

And please, let’s not just talk directly about IP, since I know we will hardly agree over such a hot topic. Let’s just talk about our smallest common libertarian conviction… concerning homesteading.

OK, so you were talking about an “empty” neighboring field. Could you be more precise? Is it empty because the owner is not there, or because you’re on mars and you just happen to be the only human living in that field of gravity? Admit at least it’s damn hard nowadays in the US to own land and have an un-owned empty field next door.

Because if it’s just the fact that the owner of the land next to you in your example happens to be absent, that would mean you suggest neighboring homesteaded property rights apply as soon as somebody leaves his property unattended… You don’t mean that do you? What do you mean?

Libertarian homesteading only goes for exploitation rights of previously unowned resources, as far as I’m concerned. Realistically: things like an oil field, or solar energy, etc…

Stephan Kinsella December 11, 2006 at 11:52 am

I commented on Machan’s paper in my post Owning Thoughts and Labor.

Comments on this entry are closed.

Previous post:

Next post: