Back in 2006, Objectivist Greg Perkins wrote a defense of IP entitled Don’t Steal This Article!: On the Libertarian Critique of Intellectual Property. Perkins’s post was part of an attempt by Objectivists to mount a defense of IP given the mounting opposition to IP among libertarians (see The Death Throes of Pro-IP Libertarianism) and even among some Objectivists (see An Objectivist Recants on IP).1
I discussed his article a bit in my post Elaborations on Randian IP, but never took the time to do a detailed response.2 His articles doesn’t contradict my assessment that There are No Good Arguments for Intellectual Property. Neither do the writings of Objectivist law professor Adam Mossoff, who is said to be writing a defense of IP, as mentioned in the Objectivist “Noodlefood” blog post An Objectivist Recants on IP??. (Mossoff’s recent article, How the “New GM” Can Steal from Toyota, provides no reason to think he’ll be able to come up with a solid defense of IP–the latest one is full of unjustified assumptions and flawed arguments about IP.)3
But since Perkins’s piece is held out by some Objectivists as “Easily the best modern Objectivist advocacy of IP that I’ve read” (until Mossoff works out IP’s “thorny issues” I suppose),4 I thought I would make a comment on some of Perkins’s arguments, which he highlighted in An Objectivist Recants on IP??, his response to my An Objectivist Recants on IP. Writes Perkins:
The first thing to note is the plain fact that people are routinely prevented from using their material property when it would violate any right — so the protection of intellectual property rights would not be unique in so “controlling” other people in their use of their material property. For example, my neighbor’s person and property rights are not violated when he is not allowed to spontaneously whack me in the head with his fully-owned two-by-four. His rights are not violated in preventing him from using his tangible truck to pull up to my house and drive off with my entertainment center. We are all restricted from using our persons and property to violate the rights of others, and such restrictions do not themselves constitute an infringement of rights because nobody has the right to violate rights.
It is bad enough that these libertarian scholars ignore such an obvious point, but the evasion reaches full bloom in Kinsella’s explanation of the alleged “taking” caused by the appearance of intellectual property. The charge is that, as intellectual property comes into existence, liberty is lost in a magical transfer of partial ownership from the owners of material property to an author or inventor, thereby unjustly preventing them from doing something they were otherwise free to do with their own property. But in no sense is any ability, permission, or liberty lost. Recall that intellectual property rights protect the manufacture of creations — objects which did not and would not otherwise exist. Before a novel has been written, absolutely nobody has the power to publish it, so its being authored cannot remove any liberty previously enjoyed by printers. And before some better mousetrap is invented, nobody has the power to produce it — so its being invented cannot deny manufacturers any previously enjoyed freedom.
Indeed, far from losing any power or liberty, the options available to owners of material property only increase with the appearance of intellectual property: they are presented with at least the potential to use their property in the production of new, life-serving objects in collaboration with an inventor or artist.
There are so many errors here it is hard to know where to start. But let me try to note a few.
First: “We are all restricted from using our persons and property to violate the rights of others, and such restrictions do not themselves constitute an infringement of rights because nobody has the right to violate rights.” His argument here is similar to that of statists who want to justify government takings and other infringement on rights, when they argue that property rights are never “absolute” anyway; after all, “you can’t yell fire in a crowded theater.” Etc. Of course, Rothbard dispatched such “reasoning” long ago.5 The mistake here lies in not realizing that limitations on your violating others’ rights has nothing to do with your own property rights; you may not violate others’ property regardless of whose property or what means you use. It’s a limit on action, not on your property rights. In fact, limits on what actions you may engage in presuppose and are based on others’ having property rights. Limits on action don’t limit or undercut property rights–they presuppose property rights So this is just confused.6
Second, in Perkins argument, he implicitly presupposes that IP just prevents you from copying other’s ideas–ideas you would not otherwise have since someone else came up with the ideas and you are just copying them. But patents DO NOT REQUIRE COPYING FOR INFRINGEMENT.7 It is completely false that patent rights do not take anything away from people that they would otherwise have had absent the innovation by the patentee. Quite often someone has already invented what you patent, or was just about to. Near-simultaneous invention is quite common, as is no surprise, since when the underlying technology (which all innovators “steal” in their attempts to build on top of it) reaches a certain point, many people working on similar problems or products using the same general level of technology will of course come up with similar innovations. In the vast majority of cases the invention would have been invented by others a few years at most after the first guy patented it. Often, someone comes up with a design solution to make a product, and never thinks to patent it; years later someone else independently invents it and patents it, and the earlier inventor can then be sued and stopped. The most common case is that engineers come up with solutions to problems to make a given product; they independently discover or create a design that works for them, but that is similar to some claims of one of the millions of patents buried in the patent office that they are totally unaware of–until they get sued 3 years later out of the blue, once they have enough sales to make it worth the while of the patentee to go after them. They never copied anything. But now they have to pay a tax–or, worse, shut down–to this state-licensed moocher. (This is why I have called for an independent inventor defense and prior user right as a minor patch to patent law.)8
Further, even if I don’t invent something patented by you, I am now prevented from doing so once you have spilled the beans, much like someone spoiling the plot of a movie. This DOES take away freedom and rights I otherwise would have had: the freedom to come up with and use ideas.
Third: we do not live by permission, but by right. I don’t need to find some right-to-use-my-property-in-x-y-z way to have a right to use it this way. So what if the information about how to use my property arises after I acquire the property? Why am I restricted in using it to guide my actions and use of my own property?
Perkins’s basic reasoning is that if the law stops you from using information others came up with, you are no worse off then if they had no come up with or publicized the information in the first place. But what kind of argument is this? It’s just flat-out wrong. It doesn’t follow at all. Absent patent law many people would make their ideas public-for example if I think of a new way to make a mouse trap, then I can keep it secret; but if I want to profit off of it I might decide to sell them publicly even though I realize this will reveal the new design to the public and subject me to competition and emulation by others on the market. Absent patents, when an inventor sells his product, this imparts information to the market and to competitors and others–information they naturally have a right to use!! Of course patents take this away!! What inventors want is to have their cake and eat it too–something I thought Objectivists opposed. They want to sell their product, which requires them to reveal, well, what the product is, thus opening themselves up to emulation and competition by others; so they want to use the power of the state to let them sell it and prevent competition. What nonsense! As Benjamin Tucker said “You want your invention to yourself? Then keep it to yourself.”9
Perkins’s argument relies on simplistic “but-for causation” analysis. He seems to think that if you can show that A would not have had information X created by B “but for” B’s creating and promulgating it, then it’s okay for the state to give B a monopoly over use of information X. As I noted above, the premise is not even true, at least for patents (for copyrights, it arguably is). But even assuming the premise, the conclusion still does not follow. So what if I “would not have” knowledge of how to do x, y, and z with my property without B discovering and publishing it. What in the world is wrong with learning? I think IP libertarians and Objectivists have gone off totally the rails; where in the world did they get the notion that justice and property rights has to do with this? Justice requires we limit the use and spread of information? Justice is opposed to learning? To emulation and competition? Justice requires a criminal state to issue anticompetitive, protectionist, state grants of monopoly privilege to help make it easier for innovators to sell products free of competition? Wha’?
Coda: I cannot resist quoting Objectivist blowhard Mark Hubbard, who writes:
Just to demonstrate the point that these are primary aspects of reality, let me take the hypothetical scenario of Ogg the Caveman who invents the wheel. Let’s say Ed the Caveman sees Ogg’s wheel and how Ogg uses it. Being a human, he applies his powers of reason to figure out how the wheel works. He then proceeds to gather materials and fashion a wheel for himself. At the end of the day, Ogg and Ed each have their own respective wheels. None of them is any poorer. The idea of the wheel now exists in both their minds.
You don’t see the obvious, even though you state it. Ogg the Caveman who invents the wheel.
Absolutely consistent with my previous post, under this scenario Ogg truly did invent the wheel: his idea and then manufacture came before File Sharer Ed copied the product of Ogg’s mind. You’ve admitted Ogg had a discreet, original idea first, as must always be the case:
Mises understands the reality of this as well as Ayn: The ideas that change the intellectual climate of a given environment are those unheard of before. For these new ideas there is no other explanation than that there was a man from whose mind they originated. From ‘Ideas’.
And yes, after the ‘creation’ of the physical wheel there is no more any scarcity of the wheel, both Ogg and Ed could have one, and Sheila: I state this only to show your scarcity argument was only ever a straw man.
And now here’s the glory.
Imagine if they’d had proper government protecting IP: Ogg could have taken out a patent, securing the product of his mind, and then he could have set up an industry around manufacture of the wheel, and with the capital made from that, set up an R & D unit, because it would’ve possible with IP to secure property in the process/manufacture of what they went onto invent: the car, the truck, then the airplane.
The end result of Objectivist thinking about property rights. It’s like an intentional self-parodying reductio ad absurdum.
Update: A preview of Mossoff’s OList webcast on IP is below. His whole premise seems to be based on the Randian confusion that we have rights in “values” that we “create”, as if values are objective things that are created; it ignores Rand’s insight that we do not actually create new things; we just rearrange existing, owned property; by doing so, we create wealth since we or others subjectively value the rearranged thing more the thing in its original configuration.
- By the way since then, other Objectivists have begun to question the Objectivist take on IP; when I delivered the speech “Intellectual Freedom and Learning versus Patent and Copyright” at the 2010 Students For Liberty Texas Regional Conference in Austin (Nov. 6, 2010) (video; audio), one young lady in the front of the audience was listening intently, with an almost tortured scowl; I wondered if the talk was going badly. At the student pizza party afterwards, she told me she was an Objectivist, and when I mentioned the expression on her face, she said she had been concentrating hard during the lecture because I was persuading her of the anti-IP position. [↩]
- 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 [Rothbard and Hoppe on 1988 Panel], Mises Blog (Dec. 11, 2006); 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. [↩]
- I discuss problems with Rand’s view at length on the Peter Mac show and at the Mises University; also IP: The Objectivists Strike Back!; The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism; Rand on IP, Owning “Values”, and “Rearrangement Rights”; Libertarian Creationism; Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors; Inventors are Like Unto …GODS…; Intellectual Products and the Right to Private Property; New Working Paper: Machan on IP; Owning Thoughts and Labor; also Elaborations on Randian IP; and Objectivists on IP. See also Hsieh and Mossoff on IP and Sewing Machines; Adam Mossoff in the WSJ. [↩]
- See Adam Mossoff in the WSJ, in which Objectivist Diana Hsieh admits IP is a “thorny” issue. [↩]
- See “Human Rights” As Property Rights:
“Furthermore, couching the analysis in terns of a “right to free speech” instead of property rights leads to confusion and the weakening of the very concept of rights. The most famous example is Justice Holmes’s contention that no one has the right to shout “Fire” falsely in a crowded theater, and therefore that the right to freedom of speech cannot be absolute, but must be weakened and tempered by considerations of “public policy.”3 And yet, if we analyze the problem in terms of property rights we will see that no weakening of the absoluteness of rights is necessary.4
“For, logically, the shouter is either a patron or the theater owner. If he is the theater owner, he is violating the property rights of the patrons in quiet enjoyment of the performance, for which he took their money in the first place. If he is another patron, then he is violating both the property right of the patrons to watching the performance and the property right of the owner, for he is violating the terms of his being there. For those terms surely include not violating the owner’s property by disrupting the performance he is putting on. In either case, he may be prosecuted as a violator of property rights; therefore, when we concentrate on the property rights involved, we see that the Holmes case implies no need for the law to weaken the absolute nature of rights.” [↩]
- See my post IP and Aggression as Limits on Property Rights: How They Differ. [↩]
- See my comment here. [↩]
- See “Reducing the Cost of IP Law, text at notes 37-38; Common Misconceptions about Plagiarism and Patents: A Call for an Independent Inventor Defense. [↩]
- Quoted in Wendy McElroy, Copyright and Patent in Benjamin Tucker’s periodical Liberty. [↩]