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Rand Paul Bad on Intellectual Property

Not a surprise for someone whose political principles appear to stem from the criminal document crafted by white racist politicians, the “Constitution,” now lionized by confused individualists and libertarians. From the mis-named Center for Individual “Freedom,” or CFIF. Paul’s mistake is to assume something is or ought to be protected as property just because the word property is used to sell it. Black Americans were slaves because the law classified them as property. What the positive law says is obviously irrelevant to justice and right. The mentally limited commentator at this site says: “Senator Paul’s comments reveal that not only do some libertarians get IP wrong, but that all property needs protection and enforcement thereof.” Yes. All property needs protection. That does not mean informational patterns ought to be considered property. This is question-begging on a grand scale.

Senator Rand Paul Proclaims the Need to Protect Intellectual Property

“I do believe in intellectual property. I do believe you have a right to your property.”

So said Senator Rand Paul (R-KY) in response to a question following his remarks during an event last week at the Heritage Foundation titled, “Will the Real Internet Freedom Please Stand Up?

In Article I, Section 8 of the U.S. Constitution, our nation’s Founders specifically provided for the protection of intellectual property (IP) in order “To promote the Progress of Science and useful Arts.”  While the fundamental concept of providing artisans, authors and inventors exclusive right to their respective works and discoveries has remained relatively uncontroversial for most of the nation’s history, recent debates regarding what to do about widespread infringement over the Internet have caused some to diminish IP protection by setting it aside as merely some abstract, disposable ideal.

That mindset is dangerous, both in theory and in practice.

First and foremost, intellectual property is vital to free enterprise and drives economic growth. According to a recent study by the Global Intellectual Property Center, IP-intensive industries currently employ more than 55 million Americans and account for 74% of all U.S. exports and $5.8 trillion in GDP.  Without strong IP protections, the incentive to innovate is removed, drying up investment, stalling growth and progress, and thus undercutting the entire economy.

Little if any incentive would exist for an author to write the next great novel, Hollywood to produce the next cinema blockbuster or a pharmaceutical company to develop a cure for cancer if none of them are able to benefit economically from their works.

Moreover, when the importance of IP is diminished or dismissed altogether, its protection is afforded different levels of enforcement not on par with that of physical property.  But the concept of property should not be rooted in its physical existence.  Owning property is a contract that provides the title-holder specific rights that lead to economic benefits, not simply a plot of land. In that way, intellectual property is no different than any other form of property.

Senator Paul gets it. In his remarks – previewed as “what could be the most significant talk on Internet freedom this year” by the Heritage Foundation’s Robert Bluey – Paul declared, “There are some libertarians who don’t believe in copyright. I am not one of them. I think you have to protect intellectual property.”

Senator Paul’s comments reveal that not only do some libertarians get IP wrong, but that all property needs protection and enforcement thereof. As evidenced by over 200 years of practice, patent, trademark and copyright protections promote the general welfare and lead to great economic advantages by driving innovation and developing capital. The end result comes in the form of countless benefits from millions of IP-intensive jobs, billions in exports and trillions in GDP spilling over to the rest of society.

Property, including intellectual property, is preeminent and deserves strong protections.

{ 14 comments… add one }
  • Crosbie Fitch August 25, 2012, 6:03 pm

    Of course, there is a way out of this mess, and that is to recognise intellectual property, but to be clear about the distinction between intellectual work as property, and the unethical privileges of copyright and patent that abridge people’s liberty.

    Otherwise, there’ll be this stand-off between the “property must be material” crowd and the “property is whatever the law says it is” crowd.

    I offer “Property is naturally delimited by the physical boundary of the individual’s private domain”, which consequently includes both material and intellectual works.

    • Matthew Swaringen August 25, 2012, 8:13 pm

      Please illustrate with an example of what you are talking about. Most people I’ve seen use language like yours had discussions that devolved into metaphysical nonsense. I’m very skeptical based on what you’ve said to this point.

      There’ll always be a standoff as long as people disagree, trying to eliminate disagreement through framing an argument with new language does not work. This really does seem like the same game I’ve seen played on Mises blog numerous times.

      • Crosbie Fitch August 26, 2012, 3:21 am

        Matthew, if we can at least agree that privileges of copyright and patent are nonsense (not least unethical), along with the aspiration of their supporters to hoodwink everyone into believing that state granted monopolies constitute property, then there cannot be too much of a gulf between the ways in which we recognise property.

        Where society has gone adrift is in losing the knowledge of natural rights, and consequently losing the understanding of what property is. People are only too ready to accept the state’s instruction to consider the monopolies it has granted over ideas or patterns as making the idea or pattern the rightful property of the monopoly holder. This is a corruption of ‘property’.

        Property comprises physical objects or spaces that we have the natural ability/power/imperative/right to exclude others from – and so the choice to include or give to others. We have no natural ability/power/imperative/right to exclude others from producing copies of what we give to them – or producing something similar to something we’ve previously produced. Such power can only come from state fiat, and it can only be granted at the expense of everyone’s liberty (and no, our inalienable liberty cannot be presumed to have been altruistically surrendered in a ‘social contract’).

        Our rights, our right to exclude, and our property arise through nature. Governments come afterwards – and they certainly aren’t instituted among men to define what is or isn’t property. They are supposed to secure our rights, not to undermine, abridge, or derogate from them.

        What remains is the difference between the simplistic position that “Property in object form is purely material” and the position I argue follows from natural rights that “Property in object form, is that which an individual can naturally exclude others from, which includes intellectual works as well as material ones”.

        Thus if an author has a manuscript in his desk drawer, according to the former position the property of the manuscript is mere ink & paper, whereas according to the latter position, the property also comprises the writing (the ink & paper is the author’s material property, and the writing is the author’s intellectual property). Both positions, of course, reject state granted reproduction monopolies. The latter position recognises that an author has a natural right to exclude others from their writings.

        This is about understanding property – and having the temerity to recognise that it includes intellectual as much as material work – not fearing to reclaim the true meaning of the term ‘property’ from those who’ve abused it as a more palatable term for ‘state granted monopoly’.

        Also see: http://culturalliberty.org/blog/index.php?id=291

        • Aaeru August 26, 2012, 4:23 am

          Crosbie is the one who opened my eyes to natural law property rights.

          What he means is that if you come into my house and COPIED my manuscript I was writing and then run out with that COPY, that is like a real theft of intellectual property (a breach of privacy).

          But if I’ve sold you my manuscript — NOW you can copy it. Bcuz that’s YOURS now. I lose control of that copy of the manuscript because I exchanged it for money.

        • PeaceRequiresAnarchy August 26, 2012, 12:33 pm

          Hi Crosbie Fitch, I wrote a rather long response to your point here about calling intellectual works like physical manuscripts “intellectual property.” See my comments below.

  • Dan Q August 25, 2012, 6:47 pm

    That’s not all. This article quotes a recent release from C4L , where Ron and Rand are attacking even voluntary waivers of rights, and favor Internet regulation according to a “C4L Litmus Test”:


    Quotes from the document:

    “Private property rights on the Internet should exist in limited fashion or not at all, and what is considered to be in the public domain should be greatly expanded.” (Attacking a personal opinion. Are these “libertarians” opposing private contracts?)

    “8. Is this policy or regulation clear and specific, with defined metrics and limitations?” (#8 in their brand-new litmus test for “clear and specific” regulation of the Internet)

    BTW I am the occasional commenter from XCopFly.com. We had a discussion there once about CC & PD, now I run LibertyColumns.com with a weekly column.

  • Mark August 26, 2012, 8:05 am

    But how is that example any different than the one used by Walter Block about someone finding out that a railroad is planned on some land, then buying up all of the land and profiting on the gain. The gain came at the expense of knowledge – knowledge that was, at the time only known by the original holder of that information. Would the person who bought up the land be responsible for the losses for the other person? If not, what’s the distinction – an original idea?
    I am still new to the IP debate and I am on the side it doesn’t exist as “property”, but I do have questions.

  • PeaceRequiresAnarchy August 26, 2012, 12:25 pm

    Test: are my comments submitting correctly?

  • PeaceRequiresAnarchy August 26, 2012, 12:26 pm

    Crosbie Fitch and Aaeru:

    Aaeru: Thank you for clarifying what Crosbie meant. I have seen him present the viewpoint several times in the comment section of several articles on this website and have never been able to fully understand his position. Now that I do, allow me to critique it.

    “What he means is that if you come into my house and COPIED my manuscript I was writing and then run out with that COPY, that is like a real theft of intellectual property (a breach of privacy).”–Aaeru

    I would not call that situation “theft of intellectual property” or theft at all. Nothing was stolen. “A breach of privacy” is a better description. If I go into your house without your permission so that I can copy your manuscript then I have violated your property right in your house.

    What could you justly do in response to my actions?

    You could not take back the “[stolen] intellectual property” because there is no such property. Again, I did not steal anything. But what you can do, in my view, is seek damages for my invasion of your property. You can say that I broke into your house, causing you distress or whatever and seek damages for that. If I have not damaged any property in your house, however, one might argue that you could not justly demand a lot of payment for my invasion of your property due to the proportionality principle. You could perhaps still demand some payment as restitution/retribution for causing me distress, for example, and because I did break into your house without permission.

    So for example, if I broke into your, sat down at your kitchen table for a few minutes, and then left without damaging anything, you couldn’t justly demand a million dollars from me. But could you demand some money from me? I think the answer is definitely yes given that I did violate your property rights.


  • PeaceRequiresAnarchy August 26, 2012, 12:28 pm

    …continued 2:

    So now let’s say that I break into your house and copy your manuscript and then leave without damaging or taking any property from you. Can you still only demand some small amount of money from me for distress, etc, or is does the valuable information that I gained during my act of un-rightfully being in your house mean that you can now justly demand significantly more money from me? I think the latter is true.

    Of course it would be difficult for a court to decide just how much money you have the right to demand of me for copying your manuscript while invading your house because the court would have to determine the value of that information in some sense. A random bit of writing would not justify forcing me to pay you a million dollars in damages, but if I snuck into JK Rowling’s house a few months before she finished editing and was ready to release the last Harry Potter book and copied her manuscript and released it to the public, certainly she would be justified in seeking well over a million dollars of damages against me.

    Again, I don’t think that any of this talk about seeking damages against a person for the information that they gain in their act of invading someone’s property means that that there is such a thing as “intellectual property.” The only property is physical.

    Crosbie attempts to distinguish between physical “material” property and physical “intellectual” property when talking about the manuscript:

    “the ink & paper is the author’s material property, and the writing is the author’s intellectual property”.

    I don’t agree that this distinction is legitimate because the “ink & paper” and the “writing” are one and the same. The “writing” is just the arrangement of the ink on the paper. Crosbie writes:

    “The latter position [that says there is “intellectual property” as well as “material property”] recognises that an author has a natural right to exclude others from their writings.”

    But so does the former. The property right in the ink and paper means that the owner has the natural right to exclude others from the ink and paper, i.e. the writing.


  • PeaceRequiresAnarchy August 26, 2012, 12:29 pm

    …continued 3:

    Before going on, let me just say that if there really is a legitimate distinction here that I am missing, I think it would be a very poor idea to use the term “intellectual property” to refer the alleged two different kinds of property. Crosbie writes:

    “This is about understanding property – and having the temerity to recognise that it includes intellectual as much as material work – not fearing to reclaim the true meaning of the term ‘property’ from those who’ve abused it as a more palatable term for ‘state granted monopoly’.”

    But the reality is that the phrase “intellectual property” won’t ever be reclaimed* to mean physical property that is easily copied and created using a lot thought, e.g. physical manuscripts, CDs with music stored on them, original paintings that can be copied easily using a camera, etc. The reality is also that if you try to reclaim this meaning by using the phrase with that meaning you will only confuse those who are trying to understand what you are saying because they will assume that you mean a non-physical idea or pattern of words, images, sounds, etc.

    (* Note: I am not knowledgeable of the history of the meaning of the phrase “intellectual property”, but I am giving Crosbie the benefit of the doubt when I say that I don’t think the meaning will ever be “reclaimed.” )

    So if there is a distinction, Crosbie, between physical material property such as paper with ink on it a and physical intellectual works or property, such as a 500 gram manuscript (which I still maintain this is just two different names for the same thing and thus really should just be called by one name–property) then please consider referring to the latter alleged different kind of property as something other than “intellectual property”. Even “intellectual work” would be better, although even then you should be careful to make sure that people do not misinterpret you as meaning the pattern of words that make up your manuscript, rather than the physical manuscript itself.


  • PeaceRequiresAnarchy August 26, 2012, 12:30 pm

    …continued 4:

    Lastly, I am going to present a similar case as the breaking-into-someones-house-and-copying-their-manuscript scenario to explain why I think Crosbie’s decision to refer to physical manuscripts as “intellectual property” is a poor choice.

    Imagine that I sneakily break into your house without your consent and install a tiny hidden camera in your bathroom. I then leave your house and you never know that I was ever there. A few days later I break into your house again and retrieve my camera. Again, you still have no clue that I ever broke into your house as I did not damage any of your property nor leave any trace of my being there that you could find.

    The next week your friend tells you that some creep filmed you in the shower and has since released the video to the public. Now let’s analyze the situation. What rights were violated and what can you justly demand of me?

    As with the copied manuscript scenario, it is clear that I violated your property right in your house by entering your house without you consent. (For the sake of making the analysis easier, we can assume that you had some cameras of your own inside your house (that you simply hadn’t checked until this point) that captured evidence of me entering your house, so there is no doubt in the eyes of a court that I definitely broke into your house). You thus can justly demand that I pay you something for this violation of your property rights. Even though I did not damage any of your property I believe you could still demand some payment, due to the fact that I did intrude in your house without your consent.


  • PeaceRequiresAnarchy August 26, 2012, 12:31 pm

    …continued 5 (last):

    So now the question is: can you demand more payment in light of the fact that I gained valuable (or damaging) information as a part of my act of invading your house? The information that I gained I gained using my camera. It is information that allows me to make copies of videos of you in the shower. As with the manuscript scenario earlier, I believe the answer is definitely yes. My act, more than just a house invasion, was a breach of your privacy, and I think you can seek restitution/retribution/damages for that.

    Note, however, that I do not believe there are “privacy rights” (although I haven’t really thought about this, so I am open to the possibility if anyone wants to argue for it). The breach of privacy was linked to the violation of your property right in your house. Thus, my view is that you can seek damages for breach of privacy when a person breaks into your house and records your manuscript or you in the shower. However, if you make a copy of your manuscript with big font and put it on a sign and walk around with it in public, then others are perfectly free to look at the manuscript and thus record it and make copies of it. Similarly, if you run around naked in public, you cannot seek restitution/retribution against someone who decides to film you.

    So the reason why I bring up this example, is to ask Crosbie: Do you consider your naked body an “intellectual work” or “intellectual property”?

    I understand that Crosbie can answer “no” to this question without contradicting his view that a physical manuscript is “intellectual property” even despite the great similarities of the cases of someone who records a manuscript during a house invasion and someone who records a naked body during a house invasion. But, my point is that I believe that the reason why it would be unjust for someone to record a copy of your manuscript in your desk drawer, Crosbie, is not because that is your “intellectual property” or your “intellectual work,” but rather because the binder in which it is enclosed or the CD on which it is stored or the container in which it is contained is your property, and you have the right to exclude others from using said property, and the only way that someone could copy the manuscript in your drawer–or closed in your binder or container or house or CD–is by using your property. This is also the reason why it would be unjust for someone to record you taking a shower.

    At this point I would guess that the difference between Crosbie’s view and my view on this issue is merely semantic. I use the phrase “intellectual property” to refer to non-physical ideas, such as patterns of words, images and sounds. Crosbie uses the phrase to refer to physical property produced from an intellect. I believe this is unnecessary and gives rise to confusion. I just refer to such property as physical material property–the only kind of property. I could create distinctions, such as “red property” and “non-red property” where “red property” is property that tends to be mostly of the color red, whereas non-red property is less red, but this is pointless, confusing, and arbitrary, as is Crosbie’s distinction between “physical intellectual property” and “physical material property”.

To the extent possible under law, Stephan Kinsella has waived all copyright and related or neighboring rights to C4SIF. This work is published from: United States. In the event the CC0 license is unenforceable a  Creative Commons License Creative Commons Attribution 3.0 License is hereby granted.