Another way to explain the problem with IP: Resources v. Knowledge; Ownership v. Possession

by Stephan Kinsella on February 6, 2017

(Adapted from a couple of conversations with Facebook friends.)

I’ve observed before that information is a guide to action, not a means of action. Means of action are scarce and ownable so as to prevent conflict over the use of those means. The same is not true of knowledge or information, which merely guides action.¹

Another way to see this is to understand that ownership may be viewed as the right to possess or control something, and is distinct from possession or control.

Possession is actual control of a resource — “the factual authority that a person exercises over a corporeal thing,” in the words of a renowned legal scholar A.N. Yiannopoulos.² Or as the Louisiana Civil Code puts it, “Possession is the detention or enjoyment of a corporeal thing, movable or immovable, that one holds or exercises by himself or by another who keeps or exercises it in his name.”³

By contrast, ownership may be viewed of as the right to possess or control a resource. As Professor Yiannopoulos explains:

Property may be defined as an exclusive right to control an economic good …; it is the name of a concept that refers to the rights and obligations, privileges and restrictions that govern the relations of man with respect to things of value. People everywhere and at all times desire the possession of things that are necessary for survival or valuable by cultural definition and which, as a result of the demand placed upon them, become scarce. Laws enforced by organized society control the competition for, and guarantee the enjoyment of, these desired things. What is guaranteed to be one’s own is property… [Property rights] confer a direct and immediate authority over a thing.⁴

See also Louisiana Civil Code, Art. 477: “Ownership is the right that confers on a person direct, immediate, and exclusive authority over a thing. The owner of a thing may use, enjoy, and dispose of it within the limits and under the conditions established by law”.

Possession is more of a matter of fact; ownership is normative, a legal concept having to do with interpersonal relations, with property rights. Possession is factual ability to use or control a resource; ownership is the legally-recognized right to control a resource. So: Crusoe alone on his island can possess a resource but he cannot own it.

Now recall that successful action requires that the actor have both control of means (scarce resources) that can help interfere with the natural course of events so as to achieve a different outcome (his end), and knowledge (as to what ends are possible, what means can achieve his end, given the causal laws in the world). On a desert island Crusoe has some knowledge, and he has control over (factual possession of) certain resources. His successful action requires both control of resources, and knowledge. He uses his knowledge to guide his actions—his use of certain resources in certain ways to attain his ends. But he does not own the resources since there are no other people to conflict with, no law, no interpersonal norms. He possesses or controls resources as a matter of fact but there is no law, no right yet.

But in society, when other people enter the scene, an actor also gains the right to control such resources. The purpose of the right is so that the actor is able to peacefully use the resource without others fighting with him over it or physically taking the resource or physically interfering with his ability to use the resource. So the ability to control, use, and manipulate a resource (possession) becomes, in a social setting, a right to control the resource (ownership, or property rights). But imagine a recipe you have–if you make it public or someone learns about it by observing you, then soon billions of people in the. world could be using that same recipe. But when you use it, you are “possessing” only the copy in your mind–you don’t possess everyone else’s information.

But imagine some knowledge Crusoe has: a recipe, for example. Saying he “has” the information doesn’t mean he “possesses” or “controls” it in the same way he controls resources. He has access to the knowledge because it is in his brain. The knowledge he have of how fire works or fish and nets work guides his actions. If he understand that a net can be fashioned with some materials and that using the net to catch fish can help him catch more fish, then this knowledge will guide his use of scarce resources and help him act profitably, successfully—catch more fish, more easily (efficiently). When other people come along, there is the potential for conflict over the raw materials (resources) out of which a net might be constructed, and the possibility of conflict over the net itself, and any fish caught. So his factual possession over these resources matures or perfects, in a civilized society, into a legally-recognized property right (ownership). Ownership is factual control plus the added right to control.

By contrast, if Crusoe’s knowledge of how to make a net to catch fish becomes known by others (say, someone else independently discovers this fact, or Crusoe explains it to someone, or someone observes Crusoe doing this and thereby learns from him)—then soon billions of people in the. world could be using that same recipe, because information is easy to copy and spread. But Crusoe’s “use” of the knowledge only requires that he have the knowledge. He never has “control” over everyone else’s information, over others’ brains. So it makes no sense to say there could be a property right in the knowledge of how to make a net, since Crusoe never did possess the knowledge out there in the world, in others’ brains. So it makes no sense to say that IP rights simply perfect the possessory fact that already existed. There was never any possession, by Crusoe, of information publicly stored in many people’s minds. He never possessed the copies; he only possessed his own body and brain, and therefore was able to use the knowledge stored in his own brain, but he never had possession over others’ copies. There is no factual possession of knowledge that can be perfected into a generalized property right or ownership interest in such knowledge.
This is why it’s literally impossible to own information per se.

At root, this is all very simple: to act you need both (a) scarce resources/means, and (b) knowledge as to possible ends to pursue and the causal laws of nature. So you need both resources, and knowledge, to act successfully. Knowledge and control of resources are the key ingredients to successful action. Because of the possibility of conflict over the use of scarce resources, you need property rights in resources, but not in knowledge. Simple.