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Joseph Diedrich: Intellectual Property Cannot Be Property

From the MacIver Institute, a Wisconsin free market group:

Intellectual Property Cannot Be Property

July 16, 2013

by Joseph Diedrich
Special Guest Perspective for the MacIver Institute

What is property?

More specifically, at its essential theoretical core, beyond the artifice of legal fiat, what is property?

Somewhat broadly, property is anything that satisfies each of the following requirements: property is scarce; property possesses objective (intersubjectively ascertainable) borders; and property has a determinable temporal genesis.

The theory of intellectual property (IP) posits that two distinct genera of proprietary resources exist–tangible and ideal–and that, while formally differentiable, they are fully compatible within a logically constructed theory of property. In essence, both tangible and ideal resources are property.

For the sake of argument, assume the truth and tenability of the IP theory–that ideal resources are, in fact, property. Assume that every idea, pattern, design, and conception meets all three of the aforementioned necessary requirements to be classified as such. Ultimately, assume that the theory of intellectual property is legitimate and fits harmoniously within a broader theory of property rights.

What, then, are the logical implications of such an assumption?

To begin, all property can be owned–i.e., fully and exclusively controlled. As economist Ludwig von Mises writes, “Ownership means full control of the services that can be derived from a good.” The process by which an individual acquires exclusive control over a proprietary resource can be either legitimate (peaceful and just) or illegitimate (aggressive and unjust). Legitimate means of acquiring ownership involve voluntary title transfer by contract, including by sale, rent, or gift. In contradistinction, theft is the prime example of illegitimate ownership acquisition.

Thus, if indeed property, ideal resources can be sold, rented (licensed), given away, or stolen, contingencies all of which are incorporated into IP law. Patent and copyright holders regularly sell, license, and give away (often by virtue of conscious ambivalence toward IP law) their patents and copyrights; moreover, they can seek legal resource if another party steals their patent or copyright.

To be sold, rented, given away, or stolen, however, property must obviously be owned, a requisite that makes necessary the consideration of unowned proprietary resources–that is, those that either have no prior record of ownership or lack an identifiable owner.

Unowned proprietary resources make up what is known as the commons. Examples of common proprietary resources include international waters and virtually all of outer space. The further one reaches back into history, the larger the size and scope of the commons becomes, until at one point all proprietary resources were common–a point prior to the advent of man and his own self-ownership.

Theoretically codified by Locke, the act of extracting proprietary resources from the commons and bringing them under exclusive control is called original appropriation (i.e., homesteading) and is both the conceptual and temporal genesis of ownership. It is from this legitimate act of property acquisition that all the other legitimate acts arise. As technology inexorably progresses, it is entirely conceivable that every iota of the commons will, in due time, be appropriated.

The commons, then, houses all unowned ideal resources–those either never appropriated or for which no original appropriator is identifiable. In IP legal speak, this is what is referred to as the “public domain,” and also includes those ideal resources for which statutory protection has expired.

If the prognostication of universal appropriation is fulfilled, eventually a world will exist in which all ideal resources are appropriated. Every idea will be owned–every concept, every design, every plan, every thought. Indeed, even the abstract idea of an “idea” will be owned. In other words, the concept of action will be under exclusive control.

As a corollary, anyone who uses the concept of action–i.e., act–without prior permission from its owner would be engaging in an illegitimate form of property acquisition, viz., theft. In order to seek said permission to use (or rent or buy) the concept of action, one must talk or write using words and concepts–in other words, one must act. One must steal. At this point, an impasse is reached: if a human being is alive, conscious, and awake, he–by necessity–acts. Such a contradiction precludes all legitimate action from taking place as a result of free-will, except by the owner of the concept of action.

Of course IP advocates will be patronizingly reassuring, pointing to the fact that there are legal boundaries set that restrict the breadth of patents and copyrights. For instance, one cannot patent or copyright “abstract ideas.” IP law is constantly changing, however. Both the length and breadth of IP protection have increased dramatically in the past few decades, and politicians could remove the abstract ideas exclusion at any moment. As long as the possibility exists in theory, there is no ultimate protection in or from statute. After all, the synthesis of a dialectic between politicians and the time is destruction.

Via reductio ad absurdum, we have just proven that ideal resources are not and cannot be property. Returning to our original theoretical definition of property, we can see why. First, unlike tangible resources, ideal resources are not scarce. The same idea can be used by multiple individuals simultaneously, without diminishing any one individual’s ability to do so. Second, unlike tangible resources, ideal resources do not have objective boundaries. One cannot know where an idea begins and where it ends. Finally, because they are not scarce and do not have objective boundaries, ideal resources cannot be appropriated temporally (or at all).

Intellectual property is the great bane of modern civilization. Nothing more than a system of government-granted monopolies, IP as a legal doctrine is malicious. As a theory, IP is intellectually bankrupt and wholly incompatible with real property, economic progress, social cooperation, and the proliferation of knowledge.

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