From the Mises Blog, 12/27/2009
Stephan Kinsella ¸
It is clear to anyone who pays attention that IP is under assault–both institutionally, as digital copying, encryption, distributed information, the Internet, and the inherent impotence of IP policing make attempts to monopolize information patterns increasingly futile; and intellectually, as more and more people, especially libertarians–and especially younger libertarians–see the injustice of IP made manifest and obvious. There is a growing body of work that explodes the myths–moral and utilitarian, principled and empirical–of the IP proponents (see the works listed at the final section of “The Case Against IP: A Concise Guide“). There has been a noticeable and growing migration of libertarians toward the anti-IP position. I have lost count of the number of people who have personally told me they have seen the light on the IP cause in recent years. Among the radical and principled libertarians I know, there is a lot of debate about a lot of things–abortion, federalism, activism, “thickism,” left- vs. right-, etc.–but on two issues there is a striking degree of agreement: these are anarchy, and intellectual property. That the state, and IP, are unjust, seem obvious to them after a little reflection. More and more libertarians are realizing that the case for IP being part of legitimate property rights is a hollow one that never needed to be accepted (see Have You Changed Your Mind About Intellectual Property?).
So it is no surprise that Objectivists would be distressed by this phenomenon. Not only are they among the most ardent modern advocates of intellectual property (in addition to Andrew J. Galambos [see Against Intellectual Property], and perhaps J. Neil Schulman), but Rand in a sense built her entire philosophical edifice on IP: to-wit, Rand incredibly said that “patents are the heart and core of property rights” and Objectivist law professor Adam Mossoff explicitly claims that “All Property is Intellectual Property” (see Objectivists: “All Property is Intellectual Property”). And so, realizing Rand’s arguments for IP are deeply flawed, and that fewer and fewer people are buying it, they are starting to fight back.Let’s survey a few. I’ve already mentioned neo-Objectivist (?) J. Neil Schulman’s logorights; I have pointed out problems I see in his view in On J. Neil Schulman’s Logorights and Reply to Schulman on the State, IP, and Carson. I think some of the mistakes Schulman makes are echoed in the tentative IP views of Machan; a problem with both is that they seem to think that any conceptually identifiable “thing” is ownable. For more on this, see Rand on IP, Owning “Values”, and “Rearrangement Rights”; my comments in the thread of the post Intellectual Products and the Right to Private Property; New Working Paper: Machan on IP; Owning Thoughts and Labor; this comment to “Trademark and Fraud”; Libertarian Creationism; also Elaborations on Randian IP and Objectivists on IP.
Another one was Objectivist IP attorney Murray Franck’s defense of IP and his reply to my response in the IOS Journal, back in 1995 (see Letter on Intellectual Property Rights, IOS Journal (June 1995); I also discuss Franck’s views in Inventors are Like Unto …GODS… and Regret: The Glory of State Law). Here we can see glimmers of the idea that “all property is intellectual property”–or, at least, that IP is the most important type of right (just as Galambos held).
There is Greg Perkins’s piece, Don’t Steal This Article!“, from 2006. I’ve noted deficiencies in his or similar arguments in various publications, such as Perkins on Pursuing Insufficiently Abundant Intangible “Values”; Against Intellectual Property; Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors; Elaborations on Randian IP; An Objectivist Recants on IP; “Intellectual Property and Libertarianism” (in particular see here and the section on Libertarian Creationism); Rand on IP, Owning “Values”, and “Rearrangement Rights”; Libertarian Creationism; Inventors are Like Unto …GODS…; Intellectual Products and the Right to Private Property; New Working Paper: Machan on IP; Owning Thoughts and Labor; and Objectivists on IP; and in media, I discuss problems with Rand’s view at length on the Peter Mac show and at the Mises University this year; also The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism.
Then there’s Objectivist law professor Adam Mossoff who is writing a defense of IP, as mentioned in the Objectivist “Noodlefood” blog post An Objectivist Recants on IP??. Roderick Long informs us that “the Ayn Rand Society session at the APA is also devoted to intellectual property”–indeed it is, with the topic “The Normative Foundations of Intellectual Property: Two Perspectives,” having as speakers Adam Mossoff and Eric R. Claeys, both of George Mason University Law School, and chaired by Allan Gotthelf (University of Pittsburgh), on Dec. 28, 2009 (sadly, I’ll miss it, since I’m here skiing in Steamboat, Colorado. Wait, not so sadly). I’m eager to see Mossoff’s paper (and curious to see what Claeys has to say), but suspect it will be built on the fallacies and errors noted in posts above such as this Objectivist blog post and Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors.
Also noted in Roderick Long’s post is his upcoming Molinari Society IP symposium at the APA later this month (Dec. 29 , 2009), including Bob Schaefer’s “Response to Kinsella: A Praxeological Look at Intellectual Property Rights.” I’ve taken a look at Schaefer’s piece, and it’s not pretty. It’s just a mess. Roderick Long ably dissects just a few of its glaring flaws here.
(Aside: Long’s comments are really superb and insightful. A few comments. Discussing the IP comments of another author, Long writes, “a strong case can be made for thinking that Lockean principles must be substantially distorted in order to press them into service on behalf of IP”. Long backs this up very ably. In the same article he makes an illuminating distinction between three conceptions of “capitalism” that helps to dispel the confusion among both right and left in addressing this issue.)
The Objectivist approach is mired in a number of problems. It anchors property rights to the idea of “creation”; it requires legislation, and the state; it believes in some intrinsic value and some property right in value; it advocates utterly arbitrary and/or unprincipled, utilitarian finite lengths for IP; it rests on an arbitrary distinction between discovery and innovation. In a world where we took the ideas of the IP advocates seriously patent and copyright would have to have infinite duration. And the gaps in coverage would be fixed, and the state’s arbitrary exceptions fixed, such as the “fair use defense” to copyright. At present patent and copyright cover a statutory class of “inventions” and artistic works, respectively. Many logos, idea-patterns, “creations,” values are not protected at present. These include: perfume smells, the fashion industry, food recipes, certain business methods, databases (unoriginal but useful collections of information), abstract ideas such as mathematical algorithms, proofs, and techniques and physical laws. Under the ideas of the IP fanatics, there is no reason not to grant state-monopolies to these patterns too. And the term should not expire in 20 or 100 years–does your property to your house expire after some time limit? And why the utilitarian fair use exception? No principled case for IP could tolerate it.
I would love to see libertarian IP advocates have to live in a world that truly implemented their IP views fully, consistently–it would be like a communist USSR stripped of its power to ape Western price structures, to ameliorate the effects of communism. They would either die out, as the material world was strangled by an impossible nettle of ghostly IP-rights tendrils, or they would cry uncle. Even today, one imagines the cognitive dissonance of Objectivists living in our digital age–cutting and pasting, linking, learning and reworking ideas of others–all the while maintaining that all the things they themselves cannot but help engage in are “immoral” or some such tedious nonsense. I think of modern do-gooder environmentalists–they must feel pangs of guilt while flying on a jumbo jet to a friend’s wedding 2000 miles away, or to attend UN conference or job posting on another continent. They must wring their hangs in agonized guilt and indecision about whether to use styrofoam, paper, or a washable coffee cup. They must feel tremendous guilt whenever they discard a scrap of soiled napkin instead of recycling it. Environmentalist parents must feel terrible pangs of guilt at using disposable diapers (or they suffer by using cloth ones: either way, I am pleased by the thought of their discomfort). Likewise, when an Objectivist emails a vandalized picture of an apostate like Alan Greenspan to a friend they must be conflicted–wait, no, there’s a fair use exception! Thank Rand for the State and its wise laws!
One striking feature of Objectivism is it outspoken support of intellectual property. A key scene in Atlas Shrugged is where metallurgist genius Hank Rearden is compelled by the government to hand over his intellectual rights to his innovative metal alloy, and Ayn Rand acted in kind. She passionately used the copyright on her works to bar people from forming “John Galt Societies”, citing that the name John Galt is her creation and her intellectual property.
For a person bent on propagating her ideas to the maximum extent possible, this would seem eerily counterproductive. Stealing an object from someone is obviously depriving the original owner of his property, but copying it isn’t. It may or may not be harmful to potential income, but that income remains potential, in the realm of the unprovable. This is a debate that incites extreme passion.
While Objectivists, libertarians and conservatives strongly agree on the principle of physical property rights, the picture is much more divided when it comes to ‘intellectual property’, a catch-all phrase for several different items, including patents, copyright and trademarks. In a landmark essay by Stephan Kinsella, Against Intellectual Property, argues that ‘Intellectual property’ is not only meaningless and harmful, it is in direct violation of the general principle of private property, and primarily constitutes a state-sanctioned creation of artificial scarcity, leading ultimately to poverty, not job creation and wealth.
The wider libertarian movement accepted the argument, put it into action (see www.mises.org/books) and moved on. Objectivists, on the other hand, maintain that what Ayn Rand spoke and practiced on the subject remains the unalterable truth.
(See also on this Jeff Tucker, If You Believe in IP, How Do You Teach Others?.)