by Tibor Machan (Chapman University). See text below.
Over the years there has been a debate among supporters of the free market concerning whether so called intellectual property is something to which one may have a private property right. One central element of the case, as advanced by some, is that because intellectual property is intangible, and tangibility makes what is owned rather easy to identify, intellectual “stuff,” such as a novel, poem, musical composition, or screenplay cannot be owned. This is not just some abstract exercise without concrete implications and applications.
Update: Penner on Intellectual Property, Monopolies, and Property: “If property is a right to things, we must provide some characterization of the things that can be property. … Most persons familiar with philosophical treatises on property are never faced with the task of thinking about why some things are objects of property and others are not.”
Comments (15)
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Intellectual Property and the Right to Private Property
Tibor R. Machan
Mises.org working paper (2004)
Intellectual Property and the Right to Private Property.pdf
Over the years there has been a debate among supporters of the free market concerning whether so called intellectual property is something to which one may have a private property right. One central element of the case, as advanced by some, is that because intellectual property is intangible, and tangibility makes what is owned rather easy to identify, intellectual “stuff,” such as a novel, poem, musical composition, or screenplay cannot be owned.
This is not just some abstract exercise without concrete implications and applications. In early 2002 a Congressional debate took place in which Disney’s Michael Eisner squared off with Intel’s Leslie L. Vadasz, both claiming that the concept of private property rights supported their conflicting positions about whether Congress should regulate the digital technology industry. Eisner claimed that common standards are needed to give protection to the rights of those who provide the content for digital products that can easily be pirated via the Internet. Vadasz argued, in contrast, that he supports the property rights of consumers to purchase and use whatever equipment might be available in the market place for use as copying devices, such as DVD or CD burners.
What makes this contrite debate especially interesting is that both sides invoke the right to private property and advocate that it be vigorously protected. Eisner thinks such protection must involve establishing common standards for reproducing intellectual property, while Vadasz believes that the protection should involve rejecting any requirement for such common standards.
There is certainly something at least initially plausible about both views. Creators of music, poems, movies, and other “intellectual” stuff have produced something over which they rightly insist they must have control. It is, after all, their work, so just as a person who enters the labor market has the right to set the terms under which he or she will exchange his time and skills for wages and salaries, so those who create intellectual content should have this right, as well, as the right to obtain protection for them from the legal authorities. (And it doesn’t matter that a person’s body originates with parents, with food others have produced, and with various natural and artificial processes that are not of that person’s creation.)
Those who produce devices that enable people to make use of creative stuff that is accessible via, say, the Internet or television, such as, say, TiVo receives, also have the right to private property and should not be interfered with. So when others try to bar them from using their devices, arguably this should also be prevented.
Just exactly how to navigate this terrain is something being worked out via the thinking and creative imaginings of innumerable scholars, legal theorists and philosophers of property. The attempt, in the meanwhile, to defend the case for treating intellectual property differently from other kinds by reference to its intangible character has some difficulties.
Sure, what is tangible is more subject to delimitation and capable of being controlled by an owner than something that is intangible. A car or dresser is such a tangible item of property, whereas a novel or musical composition tends to be fuzzy or less than distinct. One cannot grab a hold of a portion of a novel, such as one of its characters, as one can a portion of a house, say a dresser.
Yet intellectual property isn’t entirely intangible, either. Consider that a musical composition, on its face, fits the bill of being intangible, yet as it appears, mainly in a performance or on record, it takes on tangible form—meaning it is something perceivable by human senses. The sounds comprising it are in this sense tangible—at least perceivable. Consider, also, a design, say of an Omega watch. It is manifest as the watch’s shape, color, and so on. Or, again, how about a poem or musical arrangement? Both usually make their appearance in tangible form, such as the marks in a book or the distinctive style of the sounds made by a band. These may be different from a rock, dresser, top soil or building but they aren’t exactly ghosts or spirits, either.
The tangible-intangible distinction is not a good one for what can and cannot be owned and, thus, treated as distinctive enough to be related to owners. Indeed, the distinction seems to derive from a more fundamental one, in the realm of philosophy and its basic branch, metaphysics.
In a dualist world, reality would come in either a material or a spiritual rendition. Our bodies, for example, are material objects, whereas our minds or souls are spiritual or at least immaterial ones. This goes back to a certain renditions of Plato’s division of reality into the two realms, actual and ideal, although in Plato particular instances of poems or novels belong to the actual realm. A less sophisticated version of dualism, however, suggests the kind of division that’s hinted at through the tangible-intangible distinction. In nature we may have physical things as well as stuff that lacks any physical component, say our minds or ideas. Yet much that isn’t strictly and simply physical is intimately connected with what is, such as our minds (to our brains) and ideas (to the medium in which they are expressed).
It might also appear that the theological division between the natural and supernatural mirrors the tangible-intangible division but that, too, is misleading since no one who embraces that division would
classify a poem or novel as supernatural. Thus it seems that there isn’t much hope in the distinction some critics of intellectual property invoke. The tangible-intangible distinction seems to be independent of the usual types of ontological dualism and so the case against intellectual property based on it, then, seems unfounded. If there is such a distinction, between ordinary and intellectual property, it would need to be made in terms of distinctions that occur in nature, without recourse to anything like the supernatural realm. Supposedly, then, in nature itself there are two fundamentally different types of beings, tangible and intangible ones. Is this right?
Again, it may seem at first inspection that it is. We have, say, a brick, on the one hand, and a poem, on the other. But we also have something very unlike a brick, for example, smoke or vapor or clouds. In either case it’s not a problem to identify and control the former, while the latter tend to be defuse and allusive. We also have liquids, which are not so easy to identify and control as bricks but more so than gases. Indeed, it seems that there is a continuum of kinds of beings, from the very dense ones to the more and more defuse ones, leading all the way to what appear to be pure ideas, such as poems or theater set designs.
So, when we consider the matter apart from some alleged basic distinction between tangible and intangible stuff, one that seems to rest on certain problematic philosophical theories, there does not appear to be any good reason to divide the world into tangible versus intangible things. Differentiation seems to be possible in numerous ways, on a continuum, not into two exclusive categories. Nor, again, does it seem to be the case that there is anything particularly intellectual about, say, cigarette smoke or pollutants, albeit they are very difficult to identify and control. They are, in other words, not intellectual beings, whatever those may be, yet neither are they straightforwardly tangible.
I would like to explore the possibility of a very different distinction, namely, one between what is untouched by human meaning and whatever is subject to it. For example, there would be no poems without intentions, decisions, deliberations and so forth.
There would, however, be trees, rocks, fish or lakes and laws of physics or biology. Is it the point of those who deny that rights to intellectual property are possible that when people produce their intentional or deliberate objects, such as poems, novels, names, screenplays, designs, compositions, or arrangements, these things cannot be owned? But this is quite paradoxical.
The very idea of the right to private property is tied, in at least one school of the classical liberal tradition—starting with William of Ockham, to John Locke, and Ayn Rand—to human intention. It is the decision “to mix one’s labor” with a portion of nature that serves for Locke as the basis for just acquisition. In the case of such current champions of this basic individual right, such as James Sadowsky and Israel Kirzner, it is the first judgment made by someone, to invest something with value, that serves to make something an item of private property. Something similar appears to be at work in Rand’s version of how private property is acquired. (This is a different issue from what justifies the institution of private property rights as part of a legal infrastructure. On that issue, see Tibor R. Machan, The Right to Private Property [Stanford, CA: Hoover Institution Pres, 2002].)
However all of this comes out in the end, one thing is certain: the status of something as private property appears to hinge on its being in significant measure an intentional object—its status as a private owned entity has to do with in what mental relation is stands with an agent. But then it would seem that so called intellectual stuff is an even better candidate for qualifying as private property than is, say, a tree or mountain. Both of the latter only come to be related to human intentions, whereas a poem or novel cannot have their essential identity without having been intended (mentally created) by human beings.
I am not certain what the outcome should be from these and related considerations. They do suggest something that is part of both the ordinary and the so called “intellectual” property traditions, namely, that when human beings are agents of creation, when they make something on their own initiative—when they invest the world with their distinctive effort, they gain just or rightful (justified) possession of what they have produced. That is to say, they have exercised their right to private property and become owners of such creations/productions. And if there is anything that they produce more completely than such items as poems or computer games, I do not know what it might be.
So quite apart from the often mentioned utilitarian, public policy defense of copyrights or intellectual property, there is what I take to be the more fundamental and pre-legal issue of when is someone or how does one get to be the owner of something. If there is such a way, then whether this issues in incentives or such is secondary at most. The central issue is, instead, whether when someone produces or creates a work—poem, novel, song, arrangement, computer program, game, or the like (excluding all discoveries)—he or she may be deprived of these without permission? I think not.
Machan teaches business ethics at Chapman University, Orange, CA. He is research fellow at the Hoover Institution and advises Freedom Communications, Inc., on libertarian issues. His most recent book is Objectivity (Ashgate, 2004).
Ross
This author’s attempt to obfuscate the tangible-intangible distinction is amazingly weak. The question is entirely whether intangible idea can be owned.
Published: November 30, 2006 9:25 AM
David C
One mistake I see around a lot of property philosophies is that they fail to center around “human action”. That is, the end in itself is not a perfect property, but optimum “human action”. For example, another using my property deprives me of choices on how I may use it. By engaging in a system of property rights, we optimize “human action” in a very natural and sociable way. However, copyrights and patents fail this test. Instead, their imposition tends to limit and control choices rather than optimize “human action”. In this setting the origin is irrelevant (other than by perhaps violating privacy or fraudulently taking credit) rather, me doing what I want with my copy does not control or restrict what anyone else does with their copy. It may change the supply demand status when it comes to selling to other people, but that is implicitly assuming a right to limit others choices to a specific distribution path to begin with. Once again, “human action” in this situation is controlled and limited rather than maximized and made the ends in itself. IMHO, the “human action” perspective is extremely important as society enters the information age. Because as time goes on and the cheap flow of information becomes more universal, the “human action” costs increase drastically for implementing copyright type systems.
Published: November 30, 2006 9:43 AM
Ezekiel Smithburg
The link to the PDF appears to be broken.
Published: November 30, 2006 12:46 PM
Carl Johan Petrus Ridenfeldt
Comparing ideas with smoke? Come on! Such an absurd comparison almost makes me wonder what Professor Machan’s head really contains, the former or the latter? (No disrespect intended.) 😉
Clearly, there is a clear-cut, objective difference between poems, songs, technological processes, and other “ideal forms” on the one hand and smoke particles and other more-or-less “physical intangibles” on the other: scarcity. Professor Machan and I can clearly both make use of a definite song (the “definiteness” is here accepted arguendo, regardless of the reality of the “fuzziness” involved in declaring two songs to be one and the same song) at the same time and in the same respect; we cannot, however, do the same with a definite soot particle. In the second case, use is rivalrous; in the first, it is not. Surely, this difference has important, praxeological implications.
Also, we may note the following: It is true that I might “create” something with my “human initiative” by applying an axe (as, say, performance art) on the furniture in Professor Machan’s apartment. Nonetheless, we do not expect the law to thereby grant me ownership of Professor Machan’s ruined sofa. Why is that so? The answer lies in the prior-later distinction: Professor Machan already owned the sofa; hence, it is no longer up for appropriation. If such is the case, how come that a myriad of poets, composers, and computer programmers are constantly allowed to appropriate partial rights to ownership over material (such as, e. g., paper, ink, and computer hardware) that is already in my legitimate sphere of ownership?
Remember, the advocates of “intellectual property” never favor “intellectual force” (whatever that is) to be wielded against “pirates”; instead, they are proponents of the quite tangible club, gallows, and bayonet. Food for thought, no?
Published: November 30, 2006 4:59 PM
Global Warmer
Well said, Carl Johan Petrus Ridenfeldt.
Published: December 1, 2006 6:52 AM
Jim Fedako
What does it mean to own the intangible? If I am in a great need of assistance and the only person around is someone named Rhonda, do I owe the Beach Boys royalties if I were to shout, “Help me Rhonda; Help, help me Rhonda,” in desperation?
Published: December 1, 2006 7:10 AM
Wild Pegasus
If such is the case, how come that a myriad of poets, composers, and computer programmers are constantly allowed to appropriate partial rights to ownership over material (such as, e. g., paper, ink, and computer hardware) that is already in my legitimate sphere of ownership?
Say you practice rifle-shooting over an empty, unused field behind your farm. Someone moves onto the field and builds a house on it. Can you still shoot your rifle over the field?
– Josh
Published: December 1, 2006 9:43 AM
chanceH
Say you practice rifle-shooting over an empty, unused field behind your farm. Someone moves onto the field and builds a house on it. Can you still shoot your rifle over the field?
I could. You couldn’t though. I’m a descendant of Atok of the Bear Clan who orignally patented the process of “House Building”, and I inheirited all his intellectual property. Well, at first I didn’t inherit it, but Congress recently retroactively extended certain the lifespan of certain types of IP. So, by building a house without paying me the appropriate royalty, you forfeit all actual property claims.
Published: December 1, 2006 1:23 PM
quasibill
“Say you practice rifle-shooting over an empty, unused field behind your farm. Someone moves onto the field and builds a house on it. Can you still shoot your rifle over the field?”
No, but you can evict the person who builds the house, as you have assumed ownership over the field by using it (if you can, in fact, prove that you have been so using it). After you evict them, through the use of force if necessary, you can resume the use of your rightfully owned property.
Published: December 1, 2006 2:00 PM
Carl Johan Petrus Ridenfeldt
Wild Pegasus writes:
A sufficient history of rifle-shooting over a specific stretch of land would surely entitle me to a rifle-shooting easement pertaining to said plot; so, yes, I would be entitled to continue my rifle-shooting activities.
The subsequent homesteader has moved to the nuisance. The nuisance has not moved to him. This is a rather easy application of the crucial prior-later distinction in libertarian property law.
Published: December 1, 2006 3:01 PM
averros
Huh? The paper is amazingly vague and irrelevant.
There’s nothing “in between” information and matter/energy – they are different physical entities. (Note that information relevant to the IP discussions is classical information, not quantum – quantum information cannot be copied).
Correspondingly, there is no “middle road” of consistent compromise between those who say that information can be owned and those who say that it cannot.
Published: December 1, 2006 9:54 PM
Artisan
„The neighbor owner must be evicted and I m still allowed to fire my rifle for fun over his field like I always did (kill him perhaps?).“
Jeez. What a great way to extend your lawn under “libertarian” rule!
Either these examples are stated here to display the absurdity of some formulation of the concept of homesteading, or we can be sure that libertarian ideology will never be a threat to any form of modern political or socialist society!
My opinion: I’m happy in a way, that the IP debate has been re-centred on homesteading, since it seems to be the most problematic aspect of the libertarian property definition. It is subject to the most interpretation in any case… not just the major differences between Locke and Rothbard.
This being said: even a naked property can be assumed to host once in a while its owner. This proviso should be included in the land purchase act perhaps (I don’t see why there has to be a house?) Anybody who, in the name of homesteading, is shooting over the neighbor’s land, or threatening to evict the builder from a newly build house on that neighbor’s ground for that reason, can’t be quite a decent person. He can’t even argue he’s shooting “over” his head… since the bullet has to land somewhere… on another ground beyond (well OK perhaps it’s his too…) and prevent someone else to just “walk around” on his land.
I’m rather confident the same interpretation goes in fact for the building of an overcast roof over the neighbor’s naked land. Less the neighbor’s land is bought afterwards, but otherwise, the neighbor would argue he used to walk around and take a sun tan on his “naked ground” that’s homesteading of resource too, right?
Published: December 4, 2006 8:00 AM
quasibill
artisan – you are question begging again:
“Anybody who, in the name of homesteading, is shooting over the neighbor’s land, or threatening to evict the builder from a newly build house on that neighbor’s ground for that reason, can’t be quite a decent person.”
It’s not “the neighbor’s land”! That’s exactly the point! It’s YOUR land, as you have homesteaded it! This is the problem with most IP proponents, such as Machan’s article – they are at best vague and non-commital, at worst disingenuous and self-contradictory. Either you believe in homesteaded property rights, or you believe in property rights that are granted by state decree. There is no middle road.
Heck, if I follow your heart-felt philosophy, please e-mail your address so I can build a house in your backyard. I can always use a vacation home somewhere…
And you (purposely?) misread my post – I said you evict them, not just continue shooting (although the more right wing types, like apparently CJPR, will claim you can do just that). I said you do everything you can to resolve it peacefully by evicting them, with the ultimate resort to violence if necessary – at which point THEY are the aggressors.
Published: December 4, 2006 10:40 AM
Artisan
Sorry Quasibill, possibly I misread your post. But I still cannot believe you’re serious, even if you only want to “evict” that neighbor. You must at least admit homesteading like you explain it is a bit confusing.
And please, let’s not just talk directly about IP, since I know we will hardly agree over such a hot topic. Let’s just talk about our smallest common libertarian conviction… concerning homesteading.
OK, so you were talking about an “empty” neighboring field. Could you be more precise? Is it empty because the owner is not there, or because you’re on mars and you just happen to be the only human living in that field of gravity? Admit at least it’s damn hard nowadays in the US to own land and have an un-owned empty field next door.
Because if it’s just the fact that the owner of the land next to you in your example happens to be absent, that would mean you suggest neighboring homesteaded property rights apply as soon as somebody leaves his property unattended… You don’t mean that do you? What do you mean?
Libertarian homesteading only goes for exploitation rights of previously unowned resources, as far as I’m concerned. Realistically: things like an oil field, or solar energy, etc…
Published: December 4, 2006 3:46 PM
Stephan Kinsella
I commented on Machan’s paper in my post Owning Thoughts and Labor.
Published: December 11, 2006 11:52 AM