Reply to Scott Bieser on the Labor Theory of Intellectual Property

From the comments section to Wendy McElroy’s Daily Anarchist article The Basics of Copyright:

Scott:

Sorry I didn’t get to meet you at Libertopia; my best wishes to you regarding those issues.

Regarding your comments about NDAs: I agree with you here: “What I find less practical is contractual copyrights for general publications.” But to me this is not an argument for copyright, but rather a further argument against it: many people argue that copyright is just the outcome–or could be the outcome–of some private contractual schemes. But it is not and cannot.

You also write:

Just as the original farmer appropriates land from the un-owned physical commons to create a productive farm, and therefore owns the farm and the produce grown upon it, the artist or writer appropriates un-owned language and concepts from the commons of our cultural heritage to create a *work* of art or literature. That work is the property of its creator.

I have read Kinsella’s work and his position denies that property originates in a person’s labor. When I objected he accused me of supporting a “labor theory of value,” which is nonsense. What I support is a labor theory of _property_, first described by Locke, and which is the basis for most libertarians’ concept of property rights.

Most libertarians are confused by Locke’s own confused argument and his overly metaphorical way of arguing for rights. His labor theory of property, as you accurately describe it, did, IMO, give rise to the labor theory of value, and also to what I refer to as property “creationism”. Labor is just an action, however. It is not some substance that we own. We no more own labor than we own actions. ations are just what you do with things you own, including your body. I discuss this in various posts, namely: Hume on Intellectual Property and the Problematic “Labor” Metaphor. (And in others: Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and ‘Rearranging’; Locke, Smith, Marx and the Labor Theory of Value; see also Rand on IP, Owning “Values”, and “Rearrangement Rights”;  and Thoughts on Intellectual Property, Scarcity, Labor-ownership, Metaphors, and Lockean Homesteading.)

Locke is wrong that you own your labor, and he is wrong in arguing that the reason why you own things you homestead is that you have mixed with the unowned thing, something that you do own (labor). Rand is wrong to rely on this to argue that we own “values” that we “create.” Values are not things. Value is subjective, a relationship between an actor and some end of action, whether the end be a scarce resource or some outcome desired by the actor. As Mises explains, value and preference are demonstrated in action; and as Rand herself echoes, values are things you act to gain and or keep. That is, when you act, you always seek some end, and thereby you demonstrate that you do value the end you aim at more than others, which are opportunity costs of the action.

The confusion lies in thinking that creation is one of 3 sources of ownership. It is not. Rand hersefl recognized that we do not metaphysical create things; we only rearrange them. Mises, Rothbard say the same thing. When we labor on an already-owned scarce resource that is a raw material or factor of production, we rearrange it to result in a more-valuable object. In this way we create wealth or value, that is, we and/or others value the rearranged thing more than it was valued before. But no new property rights are thereby created. To produce requires ownership of the factors; production is the rearrangement or transformation of already-owned things. It results in wealth, or increases the value of the things owned, but does not result in new ownership.

The mistake stems from this sloppy, overly metaphorical way of thinking that Locke used in his argument. He double-counted by saying we own labor; it’s sufficient to say you own your body. Ownerhsip of your body is sufficient to let you do what you want with it–to act as you please, to labor as you please. You don’t own your labor, however, and you don’t own your action. You own only scarce resources, such as previously-unowned things you homestead, or your body.

Not that Locke himself, and the founders, did not believe that his homesteading idea applied to IP. He did not think it meant you had a natural right to own ideas that you create, even if you expended “labor” to “create” these ideas. (Despite strained arguments to the contrary by people like Adam Mossoff, Merges, and Eric Claeys.) SEe the links above on this.

When you act (yes, labor, fine) on a previously unowned resource you establish a better claim to the property than anyone else since you have an earlier claim than they do (see on this Hoppe and de Jasay, even Hume). Not because you “own” the labor you mixed with it. Not that anyone who argues they should be able to take the object from you is himself making an ownership claim, that is, he wants to take it and have title to it. But having title to it means he wants to be protected from anyone who comes later and tries to take it from him. He would object to this, which means he is recognizing that as between two possible claimants for a given contestable resource, the latecomer loses. But if you work backwards wtih this assumption, this means the first homesteader has a better claim than anyone in the world, since everyone else would be a latecomer. The only person who has a better claim would be someone the original owner contractually assigns title to.

It is a fact that nonscarce things like patterns of information can NOT be owned. This is not a normative argument: it is a fact. It is literally impossible to own a novel, a poem, a painting, a design for a motor. All disputes are always, necessarily, over who gets to control (own) a particular scarce (rivalrous, contestable) resource. If Bieser sues me for making copies of his drawing, what he wants is for physical force (from the state courts) to be used against my body or my owned objects, to either take these things (such as money in the case of damages) or to coerce me not to use my body or owned objects in certain ways (e.g., if he gets an injunction from the court ordering me not to print certain patterns on my own paper with my own ink). To enforce rights in “IP” always necessarily requires undermining already-existing property rights in already-existing things. Legally speaking, IP rights are negative servitudes (negative easements) (see my post Intellectual Property Rights as Negative Servitudes): it grants to the IP holder a veto right over how others use their own bodies or other owned scarce resources. I.e., the IP holder is made a co-owner with others, in their own property. It is a trasnfer of proeprty rights. A negative servitude or easement is perfectly legitimate if it is voluntarily granted by the original property owner; this is often done among neighbors in the form of restrictive covenants, say, where you agree not to paint your house outlandish colors unless your neighbors agree; they have a veto right. BUt it is not legitimate if the state just grants this veto right to people, when the burdened estate owner has not agreed to it.

Bieser goes on:

Just as the original farmer appropriates land from the un-owned physical commons to create a productive farm, and therefore owns the farm and the produce grown upon it, the artist or writer appropriates un-owned language and concepts from the commons of our cultural heritage to create a *work* of art or literature. That work is the property of its creator.

This argument is flawed in so many ways. First, it analogizes a work of art to land, while ignoring the difference between them: the land is a scarce resource, a pattern of information is not. Only scarce things are ownable things. Second, this argument would not justify modern copyright, and certainly not patent; patent affects even people who independently invent something. Copyright also covers more than just literal reproduction; it prevents people from making derivative works. If I write a new Han Solo novel I am also making a new pattern, but this is itself prohibited by copyright. and all this is based on the ridiculous idea that the only actions people are entitled ot perform are actions that are not similar to actions others have performed in the past. It is truly a breathtakingly stupid idea.

When published, it is true the work is no longer “scarce” in the same sense a physical object is said to be scarce. But neither is it superabundant in the same sense that the air and the oceans are. It is limited in time, as it did not exist before some person first labored to generate it.

Equivocation. The physical object that carries the pattern–say, a physical book–is a scarce object, but the pattern in it is not. And the pattern is not scarce just because it required labor to generate it. Information, once made public, is nonrivalrous, no matter how much effort is required to produce it. Every economist recognizes this. No one can seriously deny this.

Kinsella has remarked that it is a strange notion of property that has a time-limit on it, but it’s not strange at all. For while the farmer obtained his land from the natural world, the artist appropriated his raw materials from a social commons that had been created from the prior labor of those who came before him. Therefore, a moral debt is owed to that commons

A moral debt? What a ridiculous “defense” of state-granted monopoly privileges. There is NO MORAL DEBT AT ALL that comes from learning and taking advantage of knowledge accumulated over the centuries by previous men! And if there were, this is an argument against IP not for it; it shows that everyone is using ideas from others for free, and has no right to lock up theirs with IP.

, which the artist repays by releasing his work to the commons after enough time for him have enjoyed the fruits of his labor. (What that length of time should be is a detail to be arrived at by the same social processes that determine the details of other laws.)

This argument is so transparently ridiculous that comment on it is hardly needed. BUt it is clear that no libertarian can take this seriously.