Objectivists: “All Property is Intellectual Property”

by Stephan Kinsella on December 14, 2010

From Mises Blog a year ago:

Objectivists: “All Property is Intellectual Property”

December 9, 2009 by Stephan Kinsella

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.

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Wim Jansen December 30, 2010 at 12:05 pm

With great interest I have read this article and most references in it, especially the piece “AGAINST
INTELLECTUAL PROPERTY”. While I can agree with most of the reasoning and with the conclusion, it does not address some obvious problems. Consider 2 examples of IP; the first being a painter producing a painting, the second a production company producing a movie.

The painter has no problem under your reasoning; after all, he produces a unique tangible product that he clearly owns (assuming he owned the paint, canvas, etc.). Reproductions of his work are possible (e.g. large posters), people may want to pay to view the painting. Even taking pictures is not a problem, since that mat be taken into account in the entree fee and the quality would be far less then the painting itself.

The production company does have a problem, since their end product, if it is in a digital format, can be considered pure information (except for the media it is on). After publication, the product itself cannot be considered scarce, since it is easily reproducable. In the extreme it would only take one person to buy the movie, leave it on your proverbial park bench to be found by a third party that puts it on the internet, and everyone can download it for free. (You may insert a few more parties in the example to dilute any contract arrangements.) As a result it would clearly not be profitable to make a movie any longer.

One may argue that there is a difference in viewing a movie in the first day(s) after release and weeks later at home. And, in fact, in the Netherlands (where I am from) it is legal to download (almost) anything from the internet for personal use, including copyrighted material such as movies. Piracy (reproducing for profit) is illegal and in practice this distinction works well and studies show that people downloading content buy relatively more content if they really like it (downloads lead to more distribution/puiblicity and contribute to sales!).

Still, it seems to me that the original idea behind copyright deserves some merit: to encourage (and finance) the ‘creator’ of the artistic work (book, song, scenario) to produce more works, i.e. to promote creativity.
Following your reasoning in “AGAINST INTELLECTUAL PROPERTY” one could say that creativity (the skill to produce original work) or, if you will, a creative person, IS a scarce good.

So, the solutions may lie in allowing authors a form of copyright protection against others profiting from their scarce creativity. This should be far less than today and tied into the effort to produce the work and/or to benefit from it enough to create the next work. In essence this is not a protection of intellectual property (the work produced), but a protection of the creative skill (the person producing).

This way a distinction is made in the original performance (the shooting of the movie, the original manuscript of the book), the work produced (movie in the theater, the book), and derivitave works (DVD, scanned copy). This reflects the decreasing value of the instance of the production and allows for different legal meaaures towards those who seek to profit from the creativity of the author and those that merely ‘consume’ the work.

In terms of legislation this may not be as simple as I hope it can be, but reducing the copyright on books to 5-10 years might be a good start. Making downloading from the internet (for personal use) legal, similar to the Netherlands, is certainly a good next step!

regards, Wim Jansen

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