Patrick Smith: Un-Intellectual Property

by Stephan Kinsella on March 4, 2016

In this short and well-done video, libertarian and photographer Patrick Smith provides an argument against IP, explaining how he finally “saw the light” and realized that patent and copyright law are unjust and incompatible with property rights. Whereas he would previously become angry when people “took” his photographs and “used” them—especially, gasp, for profit!—he realized his arguments justifying his reaction were just emotional and finally came to see that there can be no just “intellectual property” rights; there can be no ownership of information.¹

Smith rightly observes that all owned things are “media”—i.e. scarce resources. If you own a CD with musical data on it, the data is just the impatterning of the owned media. Likewise, if you own a plot of land (dirt), the farm you build on it is just the impatterning of that media. To give someone ownership of the pattern apart from the medium is to give them partial ownership rights in others’ media (scarce resources). I’ve made similar arguments myself before, as has Roderick Long. As I’ve noted: an object may be owned, and the object may have various features, characteristics, or properties, such as its weight, color, age, size, shape, and how it’s impatterned, but ownership of the object and whatever features it has does not imply that the owner independently or separately owns the features of the object. Information is always stored on and embedded in some ownable medium. The medium may be owned (like a piece of paper or a thumb drive or a machine configured in a certain way), but the properties of the medium may not. As Roderick Long has explained,² owning the properties of objects that you own would be ownership of a universal, which would result in ownership of parts of everyone else’s already owned physical objects. Ownership of a red balloon would imply you own its “redness,” meaning you now own everything in the universe that has that redness, for example. (I discuss this in various recent lectures and interviews, but I can’t remember which ones precisely, offhand.)³

In fact, this is the key mistake made by J. Neil Schulman in his “logorights” defense of intellectual property—which, in recent years, dues to my discussion and criticism, he had modified to something he calls “media-carried property” or MCP, where he literally seems to recognize he is advocating ownership rights in the “properties” of owned objects.⁴ Smith understands that production or creating is just the impatterning of an already-owned media or physical resources—as Mises, Rand and others would say, it is “rearranging” your own material into a more useful configuration.⁵ (This is why Rand’s views on IP are inconsistent with the rest of her political philosophy.)

But that does not mean you own the “arrangement” of your owned resources any more than you independently own any of these resources’ other features or characteristics.

Update:

Excerpted from a brief FB exchange Neil Schulman and I had this morning about his “MCP” views (lightly edited):

J Neil Schulman

If I was pressed to get it down to one question it’s the challenge I put early in my debate with Wendy about buying the book.

…

This is the question I’ve been asking without getting an answer since my debate with Wendy:
You go into a Waldenbooks and plunk down cash for a book that says on the cover “ATLAS SHRUGGED by Ayn Rand.” You get it home … and the first sentence is, “It was the best of times, it was the worst of times.”

Now, what you bought is a book and this book has got everything that makes a book a book: a binding, hundreds of sheets of paper with printed ink impressions on it, and a cover. Let’s even pretend that the book you took home has the same number of pages, the same dimensions and weight, the same binding and style of printing as the book with the composition called ATLAS SHRUGGED. Do you have any just cause of complaint if the composition of words inside the book turns out to be something other than what the cover says? If you answer no, then you got everything you paid for. But if you answer yes, then you are saying that the composition of words makes this book a different commodity from the book you thought you were buying, and therefore you are rightfully entitled to a copy of the composition of words labelled ATLAS SHRUGGED.
Stephan Kinsella

“You go into a Waldenbooks and plunk down cash for a book that says on the cover “ATLAS SHRUGGED by Ayn Rand.” You get it home … and the first sentence is, “It was the best of times, it was the worst of times.” Now, what you bought is a book and this book has got everything that makes a book a book: a binding, hundreds of sheets of paper with printed ink impressions on it, and a cover. Let’s even pretend that the book you took home has the same number of pages, the same dimensions and weight, the same binding and style of printing as the book with the composition called ATLAS SHRUGGED. Do you have any just cause of complaint if the composition of words inside the book turns out to be something other than what the cover says? If you answer no, then you got everything you paid for. But if you answer yes, then you are saying that the composition of words makes this book a different commodity from the book you thought you were buying, and therefore you are rightfully entitled to a copy of the composition of words labelled ATLAS SHRUGGED.”

Yes, this is all correct–but it all follows purely from contract law. I am free to specify under what conditions I give you my money. I can condtion it on anything I like as long as it is definite. for example I can say “I will give you $100 as soon as you sing me a lullaby.” Or: “If and when it hails tomorrow.” You can say I am “buying” the “singing of a lullaby” or “the chance that it hails” but that is not precise and is metaphorical; it’s just a way of explaining my own motives, as buyer (well, as “seller” of the $100).

I can also specify: I will give you $100 if you deliver to me a paper book impatterned with the story by Ayn Rand called “Atlas Shrugged.” If you give me the adulterated book, you have not satistied the condition I specified for the trigger to the title to my $100.

So none of this implies that anyone owns the pattern of information ON those pages. It just means that the book has a certain impatterning, and that it mattered to me, the buyer. The book is as you say, a media; and the pattern of words on it is a media-carried property. But all that means is that any object whatsoever, any medium, always has certain features, characteristics, or “properties”: its weight, size, age, color, impatternings, arrangement, configuration. You own the object and it has certain features; you do not own the features independently or separately. To do so would be to own universals. Likewise, information cannot exist independently; it must be reflected in the patternings of some substrate, some medium: whether that be your brain, EM waves, a CD ROM, a thumb drive, a chip, a tape, a piece of paper, whatever. All information is always embedded in or carried in a medium. But the medium is the physical, scarce resource that has an owner. The owner of the resource owns that resource; and it happens to have certain features or characteristics–which are part of the owned thign, but not separately ownable. This is the heart and core of your entire mistake. You think you can separate out the impatterning and own it as a universal.
J Neil Schulman

I understand that contract law can deal in anything, including non-existent intangibles. But the argument I make in “Human Property” is that property itself is an intangible idea.

My argument has always been that an alphanumeric sequence or other distinct sequences can be justified as the basis of an ownership claim as any other distinct “thing” observable in the world.

Observable and detectable is the key concept separating my argument from “idea” or “intellectual” property.