A Recurring Fallacy: “IP is a Purer Form of Property than Material Resources”

by Stephan Kinsella on August 7, 2022

Various IP advocates sometimes argue IP is an even purer or stronger form of property than property rights in material resources, because with those, you just find them and they already exist, and you come to own them by adding some of your own labor or transformation to them (this is also similar to the criticism of property rights in land by moronic Georgists),¹ but with ideas, they come purely from the intellect so are 100% the product of the creator.

This is all nonsense of course. For one, all ideas are also incremental and build on previous knowledge developed, publicized, and advanced by others. But the fundamental mistake is in the assumption that creation is a source of ownership. See, e.g., my post Owning Thoughts and Labor; also Against Intellectual Property After Twenty Years: Looking Back and Looking Forward, the “Lockean Creationism” section here; and KOL037 | Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory.

In the end, this “IP is more important/justified than others types of property rights” is the end result of Lockean Creationism—the deeply confused and flawed idea that property rights come from creation. Once you accept that, then it seems to follow that if you create a poem or invention, you own that too. But then, you realize that perpetual patent and copyright terms would be a problem, so you arbitrarily limit these “rights.” It’s a mess. And it highlights why we need to demolish and bury Lockean/Libertarian Creationism.

But for some examples I’ve collected (I will add more over time as I stumble across them):

See Tibor Machan, “Intellectual Property and the Right to Private Property“:

the status of something as private property appears to hinge on its being in significant measure an intentional object—its status as a private owned entity has to do with in what mental relation is stands with an agent. But then it would seem that so called intellectual stuff is an even better candidate for qualifying as private property than is, say, a tree or mountain. Both of the latter only come to be related to human intentions, whereas a poem or novel cannot have their essential identity without having been intended (mentally created) by human beings.

And here: Brian Doherty, “Intellectual Property: Dying Among Libertarians?“, Reason.com (Aug 2, 2010):

I think most pro-IP libertarians would simply deny his contention that creation is not an independent source of ownership; indeed, it may seem a far purer and less problematic form of establishing just ownership than homesteading the existing physical world.

There are also echoes of this idea in Galambos and Rand, when they elevate IP rights above other rights. See also my post “Was the most fervent believer in intellectual property rights an IP thief?“:

I’ve written before about the quirky scientistic California libertarian guru Andrew J. Galambos, and his extreme, crazy IP ideas.² Galambos believed that man has property rights in his own life (primordial property) and in all “non-procreative derivatives of his life”—the “first derivatives” of a man’s life are his thoughts and ideas—these are “primary property.” Since action is based on primary property (ideas), actions are owned as well; this is referred to as “liberty.” Secondary derivatives, such as land, televisions, and other tangible goods, are produced by ideas and action.³

In other words, man has “primary” property rights in his thoughts and ideas, and secondary property rights in tangible goods. …

A version of this “primary property” idea–elevating property rights in ideas to an even higher and more fundamental status than in scarce resources–is espoused by Ayn Rand, who incredibly said, “Patents are the heart and core of property rights.” Likewise, Objectivist IP attorney Murray Franck approvingly repeated the following quote: “intellectual property is after all the only absolute possession in the world,” and Objectivist law professor Adam Mossoff argues that “All Property is Intellectual Property.”⁴ And my friend and neo-Objectivist libertarian philosopher Tibor Machan has said: “it would seem that so called intellectual stuff is an even better candidate for qualifying as private property than is, say, a tree or mountain.”⁵

So it is interesting that I came across a much earlier use of the phrase “primary property” in a very similar context, in a 1950 article about the patent controversy by Machlup & Penrose.⁶ As they note, in the debate about patent and copyright in the late 1700s:

others went as far as to say that a man’s property in his ideas was more sacred than his property in things material …

This was one of the main arguments Stanislas de Bouffler used in presenting the patent bill to the Constitutional Assembly in December 1790:”If there is for man any genuine property it is thought, … and the tree which grows on a field does not so incontrovertibly belong to the owner of the field as the idea which springs from a man’s mind belongs to author. Invention, the source of the arts, is also the source of property: it is primary property, while all other property is merely conventional ….”–Augustin-Charles Renouard, Traité des brevets d’invention (3d ed.; Paris, 1865), pp. 89-90 (first published, 1825).

I believe Neil Schulman also made similar comments, and one of the IP defenders in the Liberty debates also,⁷ but I haven’t been able to find these comments yet. And I’ve seen others make it, but can’t recall at present where.