From Mises Blog a year ago:
January 23, 2010 by Stephan Kinsella
Thanks to Stephan Kinsella for questioning the justice of intellectual property (“Intellectual Property and Libertarianism,” December 2009). Like many libertarians, he posits property rights as the foundation of libertarian political theory, and suggests that because it is a derivative concept, we stop calling the nonaggression principle an “axiom.” So far so good. But Anthony de Jasay suggests that the concept of “property” itself should in turn be considered derivative, from the still more fundamental principle of liberty of contract. De Jasay also defines “rights” and “liberties” more carefully and usefully than most libertarians, who use these loaded words all too loosely — Kinsella included. (See de Jasay’s “Choice, Contract, Consent,” or “Before Resorting to Politics,” reprinted in “Against Politics.”)
Kinsella’s attempt to show that no well-formulated property rights can apply to pure information seems dubious. Yes, information can escape physical confines and reproduce in ways that physical objects can’t, but so what? Perhaps the real question is not whether IP should be classified ontologically with other forms of “property,” but whether voluntary agreements can be reached (without the help of legislatures) that would make revelation, or publication, or mishandling of information a tort. Clearly some can; what of contracts to protect trade secrets, and other nondisclosure agreements?
Never mind that the concept of “self-ownership” has philosophical problems that Kinsella does need to take more seriously. I’ve been suspicious of “property rights reductionism” ever since I noticed that it led Rothbard to believe in his own IP rights as an author of copyrighted writings, even as he disparaged the IP rights of professional inventors. At least Kinsella avoids this inconsistency (if that’s what it is).
Kinsella is right to seek the philosophical foundations of the IP question; let’s hope he keeps digging.
What Would Edison Do?
It was a pleasure reading Stephan Kinsella’s piece “Intellectual Property and Libertarianism.” I’m in agreement with its content as regards the nature and source of property rights. What I find impossible to accept is the view that there is no good utilitarian argument in support of legislated patent and copyright law. Would Thomas Edison and his financial backers have invested so much time, effort, and money just for the pleasure of exercising intellectual creativity? I certainly wouldn’t, and I suspect I’m not alone. Having said this, in a free society, would it be a legitimate government function to establish rights where none “naturally” exist, even if the consequence of such legislation would foster an improvement in the quality of human existence? By establishing such rights, or should I say “privileges,” wouldn’t the freedom of action of others be curtailed? Formulated this way I opt for principle over utility, as the slippery slope comes to mind.
Shelter Island, NY
The Property of the Mind
Before finally getting around to the topic of his article on intellectual property, Stephan Kinsella trumpets the proposition that each person “owns” his own body; he “inhabits” it; he is its “occupant” — and Kinsella uses those very words. He dismisses as “silly wordplay” the objection that each person just is himself or his body. But who is perpetrating wordplay? Who is tainting sound political philosophy with dubious metaphysics?
Kinsella echoes the old mind-body dichotomy, the notion of the self as “the ghost in the machine” (Gilbert Ryle’s derogatory description of Descartes’ dualism). On the contrary, each person’s mind and consciousness are functions, remarkable functions, of his body and specifically his brain. Does Kinsella really mean that the self is distinct from the body? Does the one survive dissolution of the other? (Does the self exist even before its body is born?) Does Kinsella believe in ghosts or angels? What evidence, beyond very dubious evidence, can he cite? If Kinsella does not really mean what he says, he should use more exact words.
The self-ownership slogan finds some resonance in libertarian circles. But libertarians should go beyond displaying their authenticity to each other; they should try to persuade nonlibertarians. They should avoid irrelevant metaphysics. They should put their best foot forward, not their worst. I do not mean that they should dilute their libertarianism; rather, they should present it attractively.
Perhaps Kinsella could find some (feeble) excuse for his metaphysics, but he would still be putting a worst foot forward.
Stephan Kinsella’s argument against IP is seriously flawed. For instance, he states that copyright is “received automatically, whether you want it or not, and is hard to get rid of.” Copyright, that is, the right to make copies of your work, is inherent in the creation of the work. It is not “received” by law. You can waive your copyright easily by simply making copies and distributing them without the required copyright notice. Copyright law recognizes, defines, and controls to some extent your rights to control the copying and dissemination of your work.
He also states that “We libertarians already realize that . . . the right to a reputation protected by defamation law” is illegitimate. This libertarian does not realize such illegitimacy. The libertarian principle is that no person has the right to initiate aggression against another. Spreading lies or untruths to destroy the reputation of another person is clearly within the definition of aggression.
Kinsella makes a number of references to “homesteaders,” mainly, I believe, to emphasize the difference between property that you can hold in your hand, i.e., the soil from your farmland, and the more ephemeral IP which is snatched out of thin air and dissipates in the wind, i.e., the sound of a melody. However, this comparison overlooks the intellectual content of real estate (property) improvement. A farmer who homesteads a parcel of land must decide what crop will be successful on that land. A pineapple ranch in North Dakota will not succeed. Once the crop is chosen, the farmer must implement a plan for the planting and harvesting of the crop. In the case of, say, music, running a melody over in your head or tinkering on a piano is just the beginning of the creative process. It must be transcribed and carefully inspected to make sure that each note is properly chosen and placed. Then you can make your copies, register the copyright and begin selling copies of your work. With a little luck, someone may make a successful recording.
Patents are similar. You come up with the idea, develop it into a saleable product, manufacture copies and sell them. When a buyer buys a copy of your work, either invention or literary work, what does he buy? Under the law, he buys that one copy of your invention. Defining what is embodied in that one copy can get messy because the human mind is messy, but the buyer does not buy anything other than that one copy. He cannot make copies and distribute them.
So what can you do with your copy of the work or invention? You can write a critique of the song or story, quoting reasonably from the work itself to illustrate your points of argument. You can read the story or sing the song to your friends for their enjoyment. You can take your copy of an invention and modify it to suit your needs. You can strip it of unnecessary decoration that does not make it work better. You can take it apart to see how it works, or to repair it or to improve the design so much that you feel justified in applying for a patent on your improvement. You can sell it to someone else. You cannot, however, begin manufacturing the item and selling it. That is true whether the item is a widget, a book, a sheet of music, or a recording.
Klamath Falls, OR
Body of Work
Although Stephan Kinsella’s article on intellectual property moves smoothly enough from premises to conclusions, those conclusions are (to me at least) so counterintuitive that the argument acts as a reductio ad absurdum, undercutting his premises rather than proving his conclusions.
Let us say that a given work exists only in the memory of the author’s computer. At this time the work could not be more obviously the author’s; in a keystroke he can change it in any way, or abolish it forever. Overnight a hacker invades the machine, copies the work, and reproduces it. This is theft, is it not? If so, then the author retains ownership of the work even after it has left his hard drive. Why, then, would his ownership suddenly be reduced to naught at the instant that he sends it off to a prospective publisher? Reportedly, a British firm offered to publish “Lolita” if Nabokov would consent to the removal of four sentences. Nabokov refused, and the book was not released in Britain until a year later, by a different publisher. Surely this was right.
Kinsella takes it as axiomatic that one’s property rights begins with one’s own body. I think that many authors would consider their ownership of their works as more intimate, and more obvious, than their ownership of their bodies.
Kinsella responds: Mr. Randall asks whether trade secret and nondisclosure agreements could be used to construct a form of IP. I do not believe they can, because such agreements cannot bind third parties. Only by assuming that knowledge is a form of property can you bind third parties, but this assumes there is IP. I address this in further detail in the “Contract vs. Reserved Rights” section of “Against Intellectual Property,” available at StephanKinsella.com. As for philosophical problems with the notion of “self-ownership” — self-ownership just means that you have the right to decide who touches or uses your body, not some other person. What could be more libertarian, or less controversial or problematic?
Mr. Shafran is no doubt right that Edison or other patentees may have benefitted from the patent monopolies granted to them by the state. But the utilitarian case requires a benefit to the economy as a whole, not merely to particular beneficiaries of wealth redistribution. Studies almost universally conclude that there is no such gain — that patents actually restrict innovation. See the post at tinyurl.com/pat-innov for more information on these studies.
Professor Yeager misunderstands my comments. I am, like him, nonreligious. Viewing the mind as distinct from (though not unrelated to or independent of) the brain, and the self as distinct from the body, does not imply a soul or ghosts or angels. It does not imply that there can be a self without the body, or a mind without the brain. It merely implies a distinction. One may think of the mind as an epiphenomenon of the brain, but it is not the brain itself. Likewise I can run and remember with my body but running and remembering are not the same as my body. The “silly wordplay” I referred to is the use of the trite observation that we “are” our bodies (in some real sense) to object to the idea of self-ownership. But atheism is not contrary to self-ownership. Self-ownership is the libertarian idea that you have the say-so over who uses your body — that others need your permission. Self-ownership is the rejection of slavery and aggression. It is perfectly compatible with the idea that there is no soul; that you die when your body dies. In any event, Yeager’s atheism does not prove there are intellectual property rights, or that we are not self-owners.
Mr. Kirkpatrick upbraids me for stating that copyright is received automatically. He asserts that copyright may be waived “by simply making copies and distributing them without the required copyright notice.” Wrong. Copyright notice is not required at all, nor is copyright registration. See Sections 102 and 401 of the Copyright Act, or the “Copyright Basics” brochure at copyright.gov. Copyright notice has not been needed since 1989, when the law was amended per the Berne Convention.
As for reputation rights, Murray Rothbard explained in “The Ethics of Liberty” why there can be no reputation rights: your reputation is merely what third parties believe about you. You do not own their brains or what they think about you; they are entitled to change their minds about you. Kirkpatrick writes, “If I grow a potato in my back yard, it is my potato. If I write a song in my kitchen, it is my song. They are both my property.” By such reasoning one could argue that you own your wife, your parents, and your country (note the possessive pronoun!); if you discover that the earth is round then “it is my discovery” and you could own that fact. The mistake here is in failing to realize that not every “thing” that one can conceptually identify is an ownable type of thing. Scarce resources are capable of being owned because of the possibility of conflict over use of such things. Other things, such as “songs,” information, and patterns are not ownable things at all. In acting, humans select scarce means to achieve desired ends. Their choice of ends, and means, is guided by information. To successfully act, the scarce resources employed as means need to be owned, because by their nature as scarce resources only one person may use them; but the actor need not “own” the information that guides his choice of means, since he can use this information even if thousands of other people also use this information to guide their own actions.
Mr. McEwan is correct that the hacker is a thief, since he is using the author’s property (his computer) without his permission. But this does not mean that the information he gains access to is property. If the author revealed some private fact — say, that he had a glass eye — and the hacker discovered this and revealed it to the world, the author would have no right to demand that everyone forget this fact or not act on it. Likewise if the information was a novel, musical composition, recipe for a nice soup, or schematic for an improved mousetrap.