From Techdirt; comments appended below. See also Mike Masnick, “RIAA Lawyers Trying To Rewrite History Of Copyright Clause Through Shoddy Scholarship And Selective Quotation,” Techdirt (Dec. 20, 2012), responding to Paul Clement, Viet Dinh & Jeffrey Harris “The Constitutional and Historical Foundations of Copyright Protection,” Center for Individual Freedom [sic] (2012) (see also “CFIF Publishes New Policy Paper: The Constitutional and Historical Foundations of Copyright Protection,” Center for Individual Freedom [sic] (Dec. 11, 2012)), and the related post “Madison Lied about Patent and Copyright.”
from the thinking-does-not-make-it-so dept
I’m quite often confused by those who consider themselves big supporters of pure free market capitalism, but who also are adamant believers in the importance of intellectual property. Perhaps the largest group of such folks are the so-called “Objectivist” followers of Ayn Rand. Capitalist Magazine is running an Objectivist defense of the recent ProIP law that was recently signed into law despite basically being a government handout to the entertainment industry. Stephen Kinsella has responded to many of the points made in the original article, and picks up on a key point that many defenders of intellectual property always pull out in their defense:
The creator of content owns the content because he created it through his own labor, and you should always own the fruits of your own labor.
The problem is this just isn’t true and never has been. Simply providing the labor does not equal ownership. As Kinsella notes in his response:
His argument? “If a baker bakes a loaf of bread, he therefore owns it.” And likewise, for “music, movies, software.” But note the mistake here Johson makes: “If a baker bakes a loaf of bread, he therefore owns it.” The “therefore” is the giveaway: he says this because he thinks of the creation of the loaf as the act that gives rise to ownership. Then this leads to the analogy with other created things, like music. But creation of the loaf is not the reason why the baker owns it. He owns the loaf because he owned the dough that he baked. He already owned the dough, before any act of “creation”–before he transformed it with his labor. If he owned the dough, then he owns whatever he transforms his property into; the act of creation is an act of transformation that does not generate any new property rights. So creation is not necessary for him to own the resulting baked bread. Likewise, if he used someone else’s dough–say, his employer’s–then he does not own the loaf, but the owner of the dough does. So creation is not sufficient for ownership.
Exactly. Creation alone does not grant property rights if none existed prior to that transformation. I would even take the argument a step further. Even if you own something due to the fact that you created it, once you have given away or sold that product, you no longer have ownership of it — and claiming you do actually removes property rights from the lawful owner.
That is, if I make a loaf of bread, and then sell it to someone, I no longer have control over that loaf of bread. I cannot tell the new owner that he can only make French toast with it and cannot feed the bread to the pigeons. That’s for the new owner to determine. I certainly cannot tell him that he cannot take the bread and try to resell it or even give it away to others. That’s part of the free market. Yet, intellectual property enthusiasts do want to remove these property rights from the recipients of copies of the original good. Despite their claims of being property rights supporters, they are actually the opposite. They are trying to deny property rights to any recipient.