Decline to State: In opposition to the “natural rights” arguments against intellectual property

by Stephan Kinsella on January 27, 2013

Over at Decline to State (where I recently did a podcast on IP and other topics, which should be released presently), a recent blog post by one “Aneirin” criticizes my IP arguments. Unlike most arguments for IP (or against IP abolitionism), this guy seems sincere, civil, good-willed, and actually interested in truth. I don’t agree with his arguments, but the mistakes he makes (in my view) seem not to  be the result of dishonesty or malice or stubbornness, which cannot be said of most IP proponents. Not time to respond in detail to this right now, but those familiar with my Rothbardian-Hoppean-Misesian anarcho-capitalist view of rights will probably be able to guess what I think is wrong with Aneirin’s approach—

Update: see below for a few quick responses:

In opposition to the “natural rights” arguments against intellectual property

by Aneirin — last modified Jan 26, 2013 02:10 AM
A subjectivist critique of the deontological “natural rights” view of intellectual property (IP), and including some claims about the validity of ethics in general.

Within libertarian circles, opposition to intellectual property has become more popular in recent years, and among anarcho-capitalists is almost certainly the majority position. While some of the earlier anarcho-capitalist literature (e.g. Linda and Morris Tannehill’s The Market for Liberty) endorsed IP with the assumption that it was a necessary propertarian institution, the works of N. Stephan Kinsella and others have been instrumental in making the “natural rights”-based arguments which characterize IP as inconsistent with libertarian conceptions of property.

Here I will attempt to demonstrate that these arguments are plagued by inconsistency and beg the question with regard to the definition of property. My claims, while not novel in all respects, hopefully will present some important insights into the nature of property rights in libertarianism.

The Scarcity Theory of Property
To avoid the possibility of “strawmanning” these claims, I will produce the following quotation (from Kinsella’sAgainst Intellectual Property, pp. 28-9), which characterizes a common anti-IP argument regarding scarcity and the role of property:

“Let us take a step back and look afresh at the idea of property rights. Libertarians believe in property rights in tangible goods (resources). Why? What is it about tangible goods that makes them subjects for property rights? Why are tangible goods property?

A little reflection will show that it is these goods’ scarcity—the fact that there can be conflict over these goods by multiple human actors. The very possibility of conflict over a resource renders it scarce, giving rise to the need for ethical rules to govern its use. Thus, the fundamental social and ethical function of property rights is to prevent interpersonal conflict over scarce resources.[55] As Hoppe notes:

‘[O]nly because scarcity exists is there even a problem of formulating moral laws; insofar as goods are superabundant (“free” goods), no conflict over the use of goods is possible and no action-coordination is needed. Hence, it follows that any ethic, correctly conceived, must be formulated as a theory of property, i.e., a theory of the assignment of rights of exclusive control over scarce means. Because only then does it become possible to avoid otherwise inescapable and unresolvable conflict.’ [56] ”

The argument is that, for rivalrous or scarce goods, the absence of a means to limit access will result in violent conflict. From an economic standpoint, the claim makes sense, and tends to be borne out by reality.

But it is far from a deontological claim; in fact, it is a form of the consequentialism Kinsella, Hoppe et. al claim to oppose!

I am not opposed to consequentialism. I think it is compatible with other defenses of rights. It is utilitarianism that is problematic; see the section on utilitarianism in my Against IP; for some discussion of the difference between consequentialist and utilitarian arguments, see the introduction to Randy Barnett’s The Structure of Liberty: Justice and the Rule of Law, and his article Of Chickens and Eggs—The Compatibility of Moral Rights and Consequentialist Analyses. The former is not online unfortunately, but as I wrote in Knowledge, Calculation, Conflict, and Law:

Barnett’s aim in this ambitious book is to determine the type of legal system, laws, and rights which are appropriate, given the widely-shared “goal of enabling persons to survive and pursue happiness, peace, and prosperity while living in society with others” (p. 23). Happiness, peace, and prosperity are fine principles to select and quite compatible with libertarianism, but Barnett does not attempt to try to justify these basic norms or values. His argument is thus hypothetical and consequentialist, though not, he maintains, utilitarian (pp. 8, 12, 17–23, esp. 22–23).

According to Barnett, the goals of social happiness, peace, and prosperity cannot be achieved unless society’s politico–legal system somehow solves certain problems which stand in the way of this happy state. These are “the serious and pervasive social problems of knowledge, interest, and power” (p. 3, emphasis added). Libertarianism enters the picture because the libertarian (Barnett prefers the inferior and confusing term “liberal”) conceptions of justice and the rule of law provide the “structure of liberty” that addresses these problems. These principles include the “natural background rights to acquire, possess, use, and dispose of scarce resources (and other rights as well)” (p. 16). Barnett’s argument thus proceeds by showing how and why libertarianism is the best way to overcome the problems of knowledge, interest, and power.

I view Mises’s own arguments for liberty to be consequentialist, not utilitarian. Ayn Rand’s own argument for rights is hypothetical and thus in a sense consequentialist: IF you choose to “live”—that is, you make a pre-moral choice to value living-as-a-human—then, given these expressed preferences, you ought to favor individual rights and certain ethical rules. Hoppe’s argumentation ethics is similar in structure: if you value or prefer peace and harmony—which you necessarily do if you ever engage in argumentative justification—then certain libertarian-type norms follow. What in the world is wrong with people having decent, civilized basic values, or grundnorms as I call them, and then having enough honesty, sincerity, consistency and economic literacy to recognize that only libertarian norms are compatible with them? This is to be commended, not criticized. How else are we supposed to ever achieve a more liberal society, if not because more people have ever more libertarian basic values and realize that libertarianism is the only way to implement or achieve them? (For more on this see Argumentation Ethics and Liberty: A Concise Guide; The Problem with Natural Rights and True Believer ActivismWhat Libertarianism Is, at n. 14.)

Back to Aneiran’s comments:

Someone who supports a property system on the basis of the scarcity problem expresses a preference for the absence of violent conflict; that is, he or she demonstrates a subjective desire for some set of consequences (in this case, peaceful society) by acting (in this case, arguing for propertarianism along such lines).

So if scarcity arguments for property are acceptable, then why not arguments based on other possible consequences?

Anyone engaging in argumentation demonstrates a preference for civilized, peaceful, productive ways of employing scarce resources; libertarian reasoning combined with a modicum of economic literacy shows that only libertarian property allocation norms are compatible with these preferences. That means that only libertarian norms could ever hope to be justified argumentatively; and since no norms could ever be established as justified except in argumentation, it means that every non-libertarian norm proposal is inherently unjustifiable. For people that do not care about justice, I guess this is acceptable to them. But so what? We just have to regard them as technical problems and keep an eye on them, like we would any other criminal, outlaw, psychopath, or misfit. See Hoppe on Treating Aggressors as Mere “Technical Problems”, on this point. As for the status of this type of approach to justifying libertarian norms (which I share; and Hoppe fully agrees with me on IP, by the way; see Hoppe Interview on Anarchy and Intellectual PropertyHoppe on Intellectual Property): as Hoppe writes in The Economics and Ethics of Private Property:

The reaction from the other Randian side, represented by Rasmussen, is different. He has fewer difficulties recognizing the nature of my argument but then asks me in turn “So what? Why should an a priori proof of the libertarian property theory make any difference? Why not engage in aggression anyway?” Why indeed?! But then, why should the proof that 1+1=2 make any difference? One certainly can still act on the belief that 1+1=3. The obvious answer is “because a propositional justification exists for doing one thing, but not for doing another.” But why should we be reasonable, is the next comeback. Again, the answer is obvious. For one, because it would be impossible to argue against it; and further, because the proponent raising this question would already affirm the use of reason in his act of questioning it. This still might not suffice and everyone knows that it would not, for even if the libertarian ethic and argumentative reasoning must be regarded as ultimately justified, this still does not preclude that people will act on the basis of unjustified beliefs either because they don’t know, they don’t care, or they prefer not to know. I fail to see why this should be surprising or make the proof somehow defective. More than this cannot be done by propositional argument.

Rasmussen seems to think that if I could get an “ought” derived from somewhere (something that Yeager claims I am trying to do though I explicitly denied this), then things would be improved. But this is simply an illusory hope. For even if Rasmussen had proven the proposition that one ought to be reasonable and ought to act according to the libertarian property ethic, this would still be just another propositional argument. It can no more assure that people will do what they ought to do than my proof can guarantee that they will do what is justified. Where is the difference, and what is all the fuss about? There is and remains a difference between establishing a truth claim and instilling a desire to act upon the truth—with “ought” or without it. It is surely great if a proof can instill this desire. But even if it does not, this can hardly be held against it. It also does not subtract anything from its merit if in some or even many cases a few raw utilitarian assertions prove more successful in persuading anyone of libertarianism than it can do. A proof is still a proof and social psychology remains social psychology.

As for the is-ought gap: it is real, and here are Hoppe’s comments on it:

Second, there is the logical gap between “is-” and “ought-statements” which natural rights proponents have failed to bridge successfully—except for advancing some general critical remarks regarding the ultimate validity of the fact-value dichotomy. Here the praxeological proof of libertarianism has the advantage of offering a completely value-free justification of private property. It remains entirely in the realm of is-statements and never tries to derive an “ought” from an “is.” The structure of the argument is this: (a) justification is propositional justification—a priori true is-statement; (b) argumentation presupposes property in one’s body and the homesteading principle—a priori true is-statement; and (c) then, no deviation from this ethic can be argumentatively justified—a priori true is-statement. The proof also offers a key to an understanding of the nature of the fact-value dichotomy: Ought-statements cannot be derived from is statements. They belong to different logical realms. It is also clear, however, that one cannot even state that there are facts and values if no propositional exchanges exist, and that this practice of propositional exchanges in turn presupposes the acceptance of the private property ethic as valid. In other words, cognition and truth-seeking as such have a normative foundation, and the normative foundation on which cognition and truth rest is the recognition of private property rights.

Back to Aneirin:

After all, resolving the scarcity issue is not the only purpose of property. Property rights also provide incentives to create capital, means for trade to occur (and thereby division of labor, which is arguably the impetus behind morality), prevention of externalities, and justice or fairness by whatever standards are preferred (e.g. “fruit of one’s labor” claims), among other things. What, then, is inherently wrong with favoring the imposition of a moral system which includes IP if one believes it will promote innovation?

Because IP is incompatible with property rights in scarce resources. It redistributes property rights in already-owned resources from the original homesteader or owner, to some third party. It is socialistic.

Perhaps one can be wrong about the latter assumption, but one is still only demonstrating a preference for a moral rule based on its consequences.

If you insist on viewing the argument about property rights as consequentialist just because we recognize that the very purpose of property rights is to permit the peaceful, productive use of scarce resources that would otherwise have the potential of violent conflict over their use, by allocating property rights in a fair, just, natural manner (i.e. the libertarian-Lockean view that the owner of a resource is the first user or his contractual assignee in title), then you have to recognize that there is no room for other preferences like preferring rules that promote innovation, because the libertarian property rules exhaust all possibilities. There is no room for adding more rights; having some other basis for identifying the owner of a resource has to come at the expense of the libertarian property rules, which are the only ones that can be argumentatively justified. As an example, libertarian-Lockean rules say that a guy who homesteads, or purchases by contract, some raw materials—say, logs for a house, iron for equipment, paper, a printer, etc.—is the owner of these resources. Unless he commits aggression against someone, or enters into some contract, then he is the owner of these materials. This means he is free to do whatever he wants with them, subject to the general negative restriction of libertarianism that one’s actions may not invade the property borders’ of others’ bodies or other owned resources. Now some other guy comes along and gets a patent on a way of building a house; now he has a veto right over how the first guy can use his material. This means that the first guy is now sharing ownership rights with the second guy, over scarce resources that he previously owned allodially or fully. That is why IP is incompatible with Lockean rules and thus, just as with any other criminal or socialist property norm, is argumentatively unjustifiable. (See Intellectual Property Rights as Negative Servitudes.) Not to mention the ludicrous argument that IP rights actually do stimulate innovation. (The Overwhelming Empirical Case Against Patent and Copyright)

Conflicts Between Different Types of Property
As we have seen, the usual “natural rights” arguments tend to arbitrarily single out scarcity as the only important issue which property is intended to resolve. Aside from this, it is also argued that IP is forced upon others, as a holder can forcibly prevent others from using their property in a way which violates his or her IP claim. As explains Kinsella in Against Intellectual Property (pp. 35-6):

“Let us recall that IP rights give to pattern-creators partial rights of control—ownership—over the tangible property of everyone else. The pattern-creator has partial ownership of others’ property, by virtue of his IP right, because he can prohibit them from performing certain actions with their own property. Author X, for example, can prohibit a third party, Y, from inscribing a certain pattern of words on Y’s own blank pages with Y’s own ink.

That is, by merely authoring an original expression of ideas, by merely thinking of and recording some original pattern of information, or by finding a new way to use his own property (recipe), the IP creator instantly, magically becomes a partial owner of others’ property. He has some say over how third parties can use their property. IP rights change the status quo by redistributing property from individuals of one class (tangible-property owners) to individuals of another (authors and inventors). Prima facie, therefore, IP law trespasses against or “takes” the property of tangible property owners, by transferring partial ownership to authors and inventors. It is this invasion and redistribution of property that must be justified in order for IP rights to be valid.”

To illustrate the problem with this argument, suppose we have a left-anarchist of some sort who claims that individuals have just claims around the use of their physical body, or, in other words, “own themselves” (although that may not be the phrasing such a person would use). However, this individual denies the supremacy of “homesteaded” property, or of State-controlled property.

This fellow argues, “If I entered a grove of fruit trees and intended to pick apples, a farmer might come along holding a pitchfork and tell me that I must leave his orchard. If I refused, exercising my right to control the use of my body as long as I did not directly assault someone else’s body (and I am not assaulting the farmer directly), the farmer would repeat his order and say that if I did not leave, he would remove me forcibly. He might promise to use as little force as possible while evicting me from the premises, but he still is assaulting my body directly and thereby denying my right to self-ownership by trying to enforce his ‘physical property’ claim. Clearly, his ‘physical property’ is a violation of my actual property rights, and his actions are therefore unjustified.”

What is the problem here? There is one clear logical error: our left-anarchist friend is begging the question. He claims that the farmer’s orchard is not “valid property” because it violates the property rights of those who might try to enter and take, use, or modify parts of it. However, he is only able to “prove” this by classifying property exclusively as human bodies, owned by their inhabitants. The same faulty argument is used by statists to justify a “social contract” where tax payment is mandatory and tax evasion is considered theft from the State, because property which is supposed to be seized in taxes is not “valid property”.

If one assumes that property is defined as “homesteaded physical property” and nothing else, then yes, one can prove that IP is not valid. But since this requires assuming the very conclusion one seeks, it is not useful for finding what property is in general. It is possible for intellectual and physical property to coexist just as physical and bodily property can coexist; the different systems interact under principles outlined in the overarching property rights system in question.

In other words, to say, “intellectual property is not property because it violates property rights” is to make a circular argument.

It it not circular and not leftist at all. I hear this argument all the time: that hey, why are you complaining about IP rights limiting your property rights? After all, no property rights are absolute! You don’t have the right to pollute on my land or punch where my nose is!  Therefore, I suppose , any limitations are supposed to be unobjectionable. Nonsense. I have disposed of this horrible argument already: The Non-Aggression Principle as a Limit on Action, Not on Property RightsIP and Aggression as Limits on Property Rights: How They Differ. Favoring peace and prosperity is not circular; is is the basic civilized stance of most people, and it is unavoidably adopted by anyone engaged in civilized, argumentative discourse and justification; meaning that only norms compatible with these norms can hope to be argumentatively justified; that is why only the libertarian property allocation norms are justified and every other norm is not. Recognizing this is not circular. Recognizing that this implies that one is permitted to do any action in general so long as one respects others’ property borders is also not circular, nor is recognizing that IP rules are unjustified precisely because they take away existing property rights even though the owner has not committed any form of trespass.

The Problems With Objective Ethics in General
The problems with the “natural rights” anti-IP arguments reflect problems with arguments about objective ethics in general. While I do not wish to devote too much time to this issue, I will say that I believe the meta-ethical “is-ought problem” is insurmountable. I have not seen any convincing arguments to the contrary, and it seems that “ought” statements have the idea of a preference for one state (lowercase ‘s’, not the polity) over another inherently ingrained into them. “Ideal forms” arguments, for instance, involve subjective value judgements over what is “ideal”; theistic arguments, even if God did exist (which I doubt), are still the “preferences” of the God or gods in question; Kant seems to like the concept of moral laws being “universal”, but that preference is subjective, and so on. In other words, I believe the “third-grader” approach to morality of simply asking “Why?” repeatedly will never lead to anything but a subjective preference.

This is not to say that I have no personal morality. I support libertarian ethics regarding polycentric law and free markets and support individual rights along libertarian lines, but these are just my preferences, and they only exist as means to my desired ends, not ends themselves. The following resources convey some (not all) of my personal views on ethics:

Libertarianism is Not ‘No Gun in the Room’ by Niels “Nielsio” van der Linden

The Utilitarian Foundation of Morality by Daniel James Sanchez

Crusoe, Morality, and Axiomatic Libertarianism by Nielsio

Am I an IP “apologist”?
No, not at the moment. I believe in a general presumption against IP, and I tentatively support the hypothesis that IP law would yield consequences I find unfavorable (namely, rent-seeking, patent gridlock, less innovation of most types, legal uncertainty, et cetera). For more on this, see Against Intellectual Monopoly by Michele Boldrin and David Levine and this blog post by Stephan Kinsella.

However, I do believe that polycentric courts could theoretically enforce IP laws in the same way that they would enforce rights in physical and bodily property and associated freedoms of contract. I am also willing to be convinced that some IP protections could be justified by economic consequences I find favorable.

A contractual scheme is not IP, since IP is in rem and not merely contractual. Second, there are severe problems with any form of contratual scheme that attempts to emulate any form of IP. For example, if I sell you a book and make you agree to pay ten dollars damages if you copy it or allow some third party to copy it, or if you use the knowlege in the book to write a sequel or to improve your life in some way—then this deterrent will be useless, because it is so small. If I specify a million dollars in damages, no one will agree to it; they’ll just buy from someone else or get a pirated copy. Our author here is confusing consequences that might drive some contractual practices, with the justification for property norms. This is a very confused, rambling post; in the end the author seems to basically agree with deep IP skepticism, yet for some bizarre reasons, does not like my systematic and sustained, multi-faced and comprehensive demolition of every IP argument that has been mounted (Intellectual Nonsense: Fallacious Arguments for IP (Libertopia 2012)There are No Good Arguments for Intellectual Property). I’ve done what I can, though no doubt I am not perfect and improvements could be made to my formulations. But the burden of proof is on those who argue for IP; this guy, who is skeptical of IP already, should realize that, and focus on their poor arguments. Even if he finds fault in some of mine, this is no argument for IP at all. In the end, this guy’s argument seems to be: “well maybe someone could someday find a good argument for IP.” Ya think?

While IP does have substantial transaction costs, some of the other mechanisms for innovation incentives do as well, and if IP laws could solve a coordination problem more efficiently by a standard I agreed with, I would support them.

Finally, I should say that I do not believe that the arguments of Kinsella and others who oppose IP are of no value. The discussions they have prompted about libertarian legal theory, libertarian ethics and meta-ethics, and consequentialist examinations of IP have all been useful in helping us to define various aspects of what we believe. Certainly Mr. Kinsella is not a fool, and I do respect his works. But I must speak out against the developing “consensus” that IP is objectively unjust, because I value the importance of truth in the arguments we present and find the natural rights arguments to be erroneous.

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Crosbie Fitch January 27, 2013 at 1:46 pm

Evangelising the ‘Non-scarcity denies the case for IP’ sophistry is making a rod for your own back.

I don’t care how scarce or non-scarce grains of sand are, but the one in my pocket is my property, because it is in my physical possession, and I have the natural power, and, being equal to my fellows, the natural right to exclude all others from it. Whether it is a grain of gold, or a poem I have written on a gram of paper, it is my property solely as a consequence of my natural power – not because a sophist has decided that only scarce (or difficult-to-replicate) commodities may be recognised as property.

Drop the scarcity arguments. They don’t hold any water unless you’re a utilitarian. If you try and pretend they’re part of natural rights you only end up allowing others to use them to discredit natural rights.

A dog does not engage in lengthy internal debate to decide whether the bone it has in its mouth is a scarce or non-scarce item before deciding whether to defend it against the claims of others.

Having dispensed with the scarcity affectation you can then properly focus on the natural/physical basis of natural rights and more clearly help the likes of Aneirin distinguish between property as a gift of government and property as a consequence of natural rights.

See The (un)Nature Of Copyright

Anarchist Chossid February 13, 2013 at 5:31 pm

If you insist on viewing the argument about property rights as consequentialist just because we recognize that the very purpose of property rights is to permit the peaceful, productive use of scarce resources that would otherwise have the potential of violent conflict over their use, by allocating property rights in a fair, just, natural manner (i.e. the libertarian-Lockean view that the owner of a resource is the first user or his contractual assignee in title), then you have to recognize that there is no room for other preferences like preferring rules that promote innovation, because the libertarian property rules exhaust all possibilities.

This is true only if we see resolution of conflicts peacefully as the ultimate purpose of existence or at least the society. But someone may say that justice — giving one his due — is the ultimate purpose of society (and define justice as reward for his labor). Or cooperation between humans is the ultimate purpose of society. All these need to be justified, but so does the peaceful resolution.

Speaking of productive use of scarce resources, one might argue that that is the ultimate purpose of the society. But who is the arbiter of that? Well, presumably the society itself or its “representatives” or even private courts. Two people have a conflict over who is the most productive user of a farm: they go to a private court, and the judge decides.

I am not saying I agree with this view; but, in my opinion, the resolution of conflicts over scarce resources must be justified as the ultimate and sole purpose of all law.

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