This is a talk delivered at Trinity University in San Antonio, Texas, on or around April 6, 2013 by Jan Narveson. Published here for the first time (with permission). See also the entry for Narveson at Classical Liberals, Libertarians, Anarchists and Others on Intellectual Property.
Privacy, Intellectual Property, and Rights
Intellectual Property is one of the most important concepts in the world of commerce today. But there are thinkers who seriously challenge the idea. They point out that ideas do not have the property of scarcity that is required for property to make sense: If I know that p, and I tell it to you, I don’t thereby cease to know it. True, and important. On the other hand, somebody has to think up knowledge – it doesn’t fall from the heavens on us all. The work of thinkers, especially when successful, is supremely important. Without them, we would have none of the things that make life so much better for all than it was for the cavemen. The question is, how are those extremely important people to make their livings if they are not credited with what amounts to ownership of those ideas? The essentials to the solution to this problem, I am sure, lie in the distinction between ideas in the head, and ideas in Plato’s heaven. Ideas in the abstract cannot be owned or patented: nobody can own the mathematical fact that every even number is the sum of two primes, but somebody can discover it, and at the time he or she does, his is the only head having that fact in his possession. That’s scarcity enough for him to charge for the discovery. But: ordinarily a property right excludes all others forever. And yet someone else might, a week or a year later, discover that same amazing thing – latches on, as it were, to the same Platonic form. Because property is individual, there is a serious question whether the newcomer is properly excluded by the first discoverer’s right. I argue not, with some further observations on patents and copyrights.
Intellectual Property is, if not “all the rage,” the occasion of a good deal of it, along with lawsuits running into the hundreds of millions. There seems to be a certain amount of agreement in the law about this concept – but there’s also a good deal of disagreement among philosophers and even practitioners in, e.g., the software field. In this discussion, I hope to make a bit of progress. Anyone who would claim to do better, to the point, even, of having solved the problem, is either a better, or at least a bolder, philosopher than I! I shall particularly be concerned with the arguments in a recent booklet on the matter by Stephan Kinsella,1 but will also speak more broadly on the issue.
To get at this issue, we need to move heaven and earth. More precisely: Classic property lies in such things as acres of ground, and an enormous range of material objects, especially ones that have been made by somebody. Focussing on those first enables us to appreciate the problem of asserting property rights in “ideas.” I will take it that at least many cases of “earthy” type are unproblematic. However, I also want to suggest why we think that way, and then turn back to our problematic interesting cases to see whether they can be made to inherit any of the salient advantages of the “unproblematic” ones – noting, en route, that in philosophy, to assert that anything is really unproblematic is to step out on a limb…
Property Rights.1: What they Are
So, beginning at what might pass for the beginning, here I shall review what I take to be the classic, and correct, account of Property rights. We start with what property rights are
Property and Possession
For clarity, it is essential to distinguish between the notions of property and of possession. The difference is that property is normative, whereas possession is not. If I steal your car, I come to possess it – but I don’t come to own it. At most I can fool people into thinking that I own it; but the point is, that’s a different matter. The relation between them is that property is normatively sanctioned (protected) possession. If you possess something and it’s yours, then you get protected in your possession. By whom? Answer: (a) all right-thinking people who are in a position to do anything about it, and (b) maybe, by any persons suitably appointed to do something about it, such as the police, or your bodyguards.
This is by contrast with the important related idea of possession. If I own it, then you have to ask me whether you may do so; I, by contrast, may use it as I please. But possession is another matter. I have it in my hands, or in whatever way it can be so, under my control. Whether it got there by law or by accident or foul play is beside the point with possession.
Possession, it should also be noted, is essential two-termed: the possessor, and the possessed. Robinson Crusoe can possess, or not. But as to “ownership”- well, witho “first” possession, there’s nobody around to exclude, so the question doesn’t arise. When we own, there’s a relation between me, the thing, and you. If I own it, then you have to keep off unless I invite you. As I say, claims of ownership are normative: they are claims to protections of the person deemed to be the “owner”. To say that somebody owns something is to say that others are normatively forbidden to use the thing on their own, without that person’s permission. They are normatively required to ask.
Of course, what I may do with it is always limited by other people’s rights, including (obviously!) their property rights. So I can’t use my car to bash into yours, or my sword to run you through. In the case of Intellectual Property, we are talking, almost entirely, about using certain ideas or expressions for commercial (and sometimes some other) purposes, and there, the potential for clashing with rights of others is formidable. Property rights only do something if there is a “space” within which it may be used without appreciable damage to others. Some make that the basis for a general critique of property rights. But most (all?) of us have many items of property which do not fall afoul of such critiques. We manage.
The definition given uses the word ‘normative’. But what kind of norm? The main distinction here is between a moral interpretation and a legal one. The moral interpretation, which is what we will mainly be using in this theoretical inquiry, is supra-legal: we ask what the law should be, whatever it may be. The legal interpretation would have it that property is essentially a creature of government, or any other law-creating institution there might be, as in the by-laws of some club or business. I shall take government as my normal source here. But this is not a discussion of what the current law is. Rather, it is a theoretical inquiry into what the laws should be like. If we say it’s what they “are” like, then we are talking about law, not as what is actually on “the books” in some legal system, but as a presumed underlying principle guiding (we hope) the detailed work of legislators. In that direction, of course, there ceases to be a difference of legal and moral.
What is especially crucial is enforcement. To say that there ought to be a law about x is to say that we may reasonably require somebody to do something about x, the requirement being enforceable. That is paramount here.
Property Rights.2: How?
So, first, how do we acquire property rights – if we do? In just what do we have them and how did we come by them? Here again the classic theory is decently well developed. Property rights come about either via initial acquisition or transfer (or – a residual case – restitution, which is giving back what was wrongly taken from someone, and thus rides piggy-back on the first two.)
Property Rights.2.1 Exchange
Transfer is easy: if A already owns x, and B already owns y, and A would prefer having B’s x while B would rather have A’s y, the situation is ripe for exchange. Or if A simply wants to give x to B, then, since by hypothesis he may do what he wants with x, why not? So exchange and gift are in the same moral category: both are underwritten by the wills of individuals concerned.
Property Rights.2.2 Original Acquisition
In order for people to exchange, they must first have. So the more fundamental context is the first – what has come to be called “original” acquisition. And here we may distinguish – very loosely – two sorts. One is that we simply stumble upon x, and take it into our possession. The other is that we make the item in question.
Finding x may seem like a singularly unmeritorious method of acquiring x if it is indeed to become our property. But in a way, that’s an advantage. If “merit” were required, who would decide what constitutes merit? And what would he say to those who disagree about that? And, of course, what do any of them say to the bloke who just happened to get there first?
Now, about that bloke: he stumbled upon it, yes – but he did so before anybody else did. And suppose the others want to take it from him. He didn’t do anything to them – why does he deserve to be deprived of this thing that nobody else owns or has any reasonable claim to? Certainly they haven’t got a better claim than he. He found it, and they didn’t. After all, if nobody at all found it, it wouldn’t be any benefit to anyone. Given that one person did, it will be a benefit to him, and also to all others with whom he might exchange, either the thing itself or something it helped enable him to make.
Property Rights.3: Why?
3.1 Why there’s (claimed to be) a Problem about Original Acquisition
Lots of writers claim that property rights are always got at cost to those who are excluded. We must justify the exclusion, to be sure – justifying that is, after all, precisely what it’s all about, since rights are essentially exclusions. But there are different ways of chalking this up as a cost. All Rights have costs. To have a right is always, by definition, for others to be prevented from doing something they might want to do. To show that nevertheless we should have property rights, we need to show all these people, who may seem to be “losers”, that they in fact are not losers, but gainers.
My take on this (which is far from original) is that those “excluded” aren’t in fact excluded from anything they could otherwise have had. In Hobbes’ “State of Nature” where, by definition, there are no rules, theft would not be a definable activity. Anybody is “allowed” – by default – to do anything whatever. But in the no-rule condition, nobody actually gets anything. People occasionally possess something, but nobody gets any protection in the ownership of anything. To get such protection is to exclude would-be “invaders and despoilers” from doing that. Such activity can’t be productive, because everybody is at war and always standing by to deprive you of any temporary gains. So the “natural condition” leaves everybody worse off than the one where property rights are respected. And that, in a nutshell, is the “why” of property.
3.2 Property, Liberty and Self-Ownership
The ante is perhaps upped quite a bit when we point out that the first and main thing you own is you. People are indeed the absolute paradigm, paradigmatic, and paramount case of Original Acquisition. Why?
Because ownership of x is: the owner gets to do what he or she wants to with x – others must ask. So, let x be the owner him or herself. Then the assertion of “self-ownership” is the familiar liberal thesis that we may do what we want with ourselves – which is just another way of saying that we may do as we want, period – or more precisely, period, that is, within the limits imposed by other people’s rights. (More about that shortly.) But this makes it obvious that to assert, as a generalization, that people have property rights is to assert that they have a right to liberty. Given self-ownership, liberty is property.
Self-ownership is via original acquisition because you “stumble upon” yourself as soon as you’re able o be aware of anything. This body that I turn out to “have” is not something I could have bought somewhere, and nobody could have given it to me – because prior to that, there was no “me” to do any acquiring of any sort, whereas afterward, I’m stuck with it! It is as “original” as anything could possibly be.
Note that this liberal view is a moral view, and it is not at all trivial. What is trivial is something else: self-possession. The point I’ve just made is that we possess ourselves naturally. That is to say: this command-and-control centre, sometimes known as the “soul,” is “connected” to this body by nature – all those nerve paths and whatnot, presumably. But nevertheless, others can come along and take over; they can even claim the right to do so. Liberalism is a radical moral view. It is as nontrivial as it gets! A good deal of humanity, a good while ago, had a revolution: they revolted against claims on the part of kings, gods, Society, etc., to be legitimate controllers of you. The revolution is by no means complete, but its general principles are widely given lip-service, at least (e.g. by a certain amount of the U.S. and Canadian and many other constitutions.) The lip-service ends at legislation, where governments resume the age-old business of trying to take over us, as much as possible, despite “democracy” and the like…
Nevertheless, the case for the general outlook of liberalism is extremely strong. After all, it is designed to be maximally appealing to everyone.
3.4 St. Pareto
My favorite mythical saint is a character named Saint Pareto. Pareto himself (Vilfredo Pareto) was an economist and sociologist, one of Europe’s most interesting intellectuals. And he was, as far as I can tell, not particularly a saint. However, what we owe especially to Pareto – and about all you’re ever likely to hear if you hear anything at all – is his concepts of social efficiency. In particular, a social situation, S1, is said to be weakly superior in the sense of Pareto to another, S2 (involving the same individuals), if at least one person is better off and no one is worse off in S1 than in S2. The move from one to the other would be called a “Pareto improvement.” He then defines optimality or efficiency as the state of S such that no one can be made better off without making someone worse off. An example violating this would be an income redistribution in which money is taken from B to give it to C. C is then better off, but B is worse off, and so the situation as a whole does not involve an improvement in the sense of Pareto.
We can use this terminology to formulate a moral principle: always act in such a way that your actions produce Pareto improvements. That is to say: don’t do anything that is at anyone’s expense. This is what I call the Gospel according to St. Pareto. I suspect that Pareto himself would have accepted that principle, though I’m not sure. I am, however, pretty sure that most people accept it. Small wonder. It is a misleadingly precise formulation of an ancient maxim: “Do no harm.” There is another maxim, “Do good.” This gives rise to a big question hovering over the do-gooders: do they accept the other maxim too? Unfortunately, many do not. They think that we are entitled to do good to some people even if in doing so we do harm to others, so long as the harm to those others is outweighed by the good done to the first. These last are Utilitarians, who think that we should aim at maximizing net good all around, integrating benefits and detriments – no matter whose.
In most ethics textbooks of today, you’ll find what is held to be a basic distinction, between “deontology” and “consequentialism.” This will tend to be defined in terms of consequences: are acts basically right or wrong “in themselves,” or are they right or wrong on account of their consequences? Without getting too deeply into the technical terminology of contemporary ethical theory, let me just say that this is probably the worst major bifurcation in the history of moral philosophy. If I tickle somebody, is the sensation he gets from this a “consequence”? Or is it part of my act? – after all, you cant’ tickle somebody without his getting tickled!
Of course, the latter would be silly if it meant, never spend anything. The idea, however, is that these changes are to be voluntary. If I sell you something and nobody forces you to buy it, but you buy it anyway, then you are presumed to have improved your situation. (At least, that’s what you thought, or hoped, you were doing.)
What’s cool about the Paretian idea is that we owe the duty of non-harm to every individual. If our actions impinge on someone, then we want to make sure that it’s “OK with them”. Either they don’t mind, or they ask for something and you supply it. Everybody’s happy. With a utilitarian format, on the other hand, some people may not be happy. Why not?
Pareto and Kant
Some answers won’t count, but others will. The individual in question has been “used” – done down. Our individualist moral standpoint says, in agreement with Kant, that we shouldn’t do that. People may, of course, be used (contrary to what some people take Kant to have said), but only voluntarily (which in effect is what he did say).
Why would we want to subscribe to such an ethic? The short answer is that if nobody loses, then you don’t lose. And losing is something we don’t want to do.
Now, back to property: Our individual roaming the bush finds some possibly valuable thing – land, or coal, or whatever. In discovering this thing, on hitherto unused territory, he harms no person, so keeps to the rule of Pareto. If others barge in and deprive him of his discovery, then that person is harmed, violating that rule. No other system can make that statement!
Paretianism allows us to move from primitive no-ownership to ownership, without net cost to society, but with a gain, at least to the discoverer, and thereafter to others.
On a fanciful alternate view, natural resources somehow “belong” to mankind at large. They didn’t have to do anything to earn that status, but it enables them to whine about the fortunate or busy people who do find things. What will be noted about this idea is that it violates Pareto, big time: The people who have things become eligible targets for everyone else’s acquisitive tendencies. This is no way to run a world in which things need to be done if we are to endure, let alone progress.
Let’s get back to Original Acquisition. I have talked about “finding” things, and proposed that it is a perfectly legitimate way to come by them. Eventually, we might imagine (and lot of theorists do imagine), everything would be “found,” and then what? Nothing left for anybody who came too late! Newcomers – at least, ones who lacked propertied parents – would be out of luck!
But, not so fast: for there is also creating things – making things, and thinking up better ways to do something, for example. Let’s divide this into two extrmely fuzzily distinguished parts: just plain work, and creative work. First, there’s “labor”, especially (for our purposes) unskilled labor. The laborer starts with a shovel and a bunch of earth in front of him, and he owns neither the shovel nor the earth. But he does own himself, and in return for his toils, he gets a wage that he has voluntarily negotiated with the owners of the shovel and the earth. At the end of the day, there’s a fair-sized ditch, which the owner wants, and a payment sufficient to get the laborer his domicile and food for another day or so. New things that weren’t there before are created. Not, of course, new pieces of earth, but new configurations that are worth more than what was there before.
Second, though, there is work that involves new ideas, about new ways to do things, or even new things to do. Some people are creative – quite a lot of them, actually. And please note: this time, by the way, the “problem” that we might run out of things to acquire, can be dismissed (of course, it already has been, since our ditch digger also created something new. But he didn’t create the idea of doing it nor the broader purposes for which it might be used.)
“Creation” is our nearest analogue to what theologians used to call creation ex nihilo – making something out of nothing, a feat presumed to be possible only at the skillful hands of the Deity (bypassing the question of where he is supposed to have come from …) But actually, we humans are gods on earth in this department, when you look at it the right way. For the person who thinks up an important new idea withdraws nothing from the world’s stock of resources. His good (and bad!) ideas come, as far as he’s concerned, “out of the blue” – “from nowhere.” All of a sudden, there it is! No doubt there are, in some esoteric sense, “explanations” for this, but they’re usually useless to the creator, who is thankful for his good ideas but has, actually, no one and nothing to thank, other than “Lady Luck” in the form of a whole bunch of neural networks and such, about whose detailed workings he knows typically nothing at all.
Will all the things it is possible to create be someday created, leaving nothing new for anyone else to think up? No. The sky, as they say, is the limit. No matter where we are now, some clever person will find a still better way to do it. No matter how many symphonies are composed, a new Beethoven might be around the next corner.
- Intellectual Property
The person who thinks up something new has an idea in his head which, quite possibly, no one else has. But then again, we suddenly realize, someone else might have it. And suppose she does: A invents the electric light bulb, but meanwhile, somewhere far away, B invents it too. It’s hardly impossible. Leibniz and Newton, famously, invented the calculus more or less simultaneously (about 8 years apart, as it turns out) – neither knew what the other was doing. (It’s a fascinating case. Newton thought up the essentials in 1666, but didn’t publish until 1693, then 1704. Leibniz thought it up in 1674 but published in 1684. Who’s “first” Do we go by first to know or first to publish?)2
With the calculus, it doesn’t matter much. Both geniuses discovered the theory, and nobody is trying to sell us the rights to it. But now: who “owns” the light bulb? To whom should we give the patent?
The difficulty is of huge interest, not only theoretical but practical. If I own this car, you don’t. If while I was buying it from Smith, you were also “buying” it from Jones, something is wrong. One of those alleged sellers is a fake. Material objects are particulars. They can’t be in two places at a time, though they can be duplicated. I could buy a Lamborghini (hah!), and so could you. But what you couldn’t do is buy my Lamborghini, except from me. Property, as Stephan Kinsella says, requires scarcity. Indeed, he suggests, “the fundamental social and ethical function of property rights is to prevent interpersonal conflict over scarce resources.”
[Stephan Kinsella. Against Intellectual Property (Kindle Locations 403-404). Laissez Faire Books.] He’s right. As Hume points out,3 if goods are in unlimited supply, we don’t need justice – we can’t even formulate any sensible principles of justice, for there just isn’t anything for it to be about.
Yet the needed scarcity seems to be scarce! For you and I and goodness knows how many others could think up the same equation or the same process of production, or whatever. We could do this without copying any particular predecessors, or even knowing that they exist. What now?
Well, of course the first answer to that question is that each person who thinks up a given idea can also use it in whatever way he or she can think up to use it. No patents need apply. And when you think of it, all of us are constantly making use of various ideas, though many have become habits and we don’t need to re-invent them – either the wheel or anything else. It is also true, probably, that nearly all these ideas of which we make frequent use came to us from somebody else, in one way or another. In typical cases, there would be no possible way of identifying some particular individual who did the teaching, or whatever. Moreover, almost always that teacher would be passing on something he got from somebody else.
That this plethora of practical and other ideas is valuable is beyond question. Most minds, I suppose, are cluttered up with a fair amount of junk, too, but a great deal of what they contain is essential to a lot of what they do. Their lives depend on it – not necessarily in the sense that otherwise they’d be dead (though often that’s true too), but in the sense that they wouldn’t be able to live their lives if it weren’t for that big stock of ideas. And if one had to pay a fee for each and every idea you use, life would, very likely, be impossible.
In short, a whole lot of what we live by is got “for nothing” in the sense that we didn’t get it from somebody who owned it who could or would charge a fee. Lots of our common stock of ideas is common, and has no particular price.
Well, yes … but: the acquisition of a lot of our ideas did have a price. If you play the cello, chances are that somebody gave you lessons, without which you’d be either nowhere, or at least not anywhere near where you’d like to be, or now are. Your teacher may have invented some new techniques, or some new methods for imparting the needed skills – but also, and very likely, perhaps not. In either case, he or she charges you perhaps $40 per lesson, and it is (often) worth it. If ideas have no price, how did this happen?
Services as Goods
Well, the short answer here is that what you are buying from your teacher is a service: you are paying her to help enable you to play the cello better. Whether she gets her ideas about how to do this from somebody else or not is pretty much beside the point. What is the point is that she has the needed particularity: her services are hers (as Locke has it, “the labour of his body is his” – well, so is the labour of her mind, as well as those highly skilled muscles.)
Someone else might also be able to provide them, and you could perhaps have gone to him instead – competition, we hope, is always with us. Still, what you buy is the services of this particular person, and each time you avail yourself of them is a historical event. It happens, each time it happens, just that one time. And this is true despite the fact that the intellectual content of what she teaches you is notionally timeless (or, if you like, eternal.)
Plato’s Heaven and Plato’s – and our – Heads
Where does the number 17 dwell? Or the formula 7+8=15? Seventeen-membered identifiable groups of assorted entities are all over the place, but the number 17 which they all have in common is neither in any particular place, nor “all over the place.” The thought that somebody might own the number 17 seems without clear sense. And the same goes for all such entities, which philosophers used to (still do?) call “universals.” If somebody tried to claim ownership of such a thing, he would be laughed out of court. When your having it doesn’t exclude my having it, ownership is an inapplicable idea. If the idea of patenting ideas were the idea of cornering universals, the idea of patents would be nonsensical.
While that is true, though, it remains that the word ‘idea’ also applies to a real happening in the world, namely in people’s minds. Even if you and I both have the idea of 17, still, there is an occurrence in your mind – one thing; and an occurrence in my mind – another thing. Ideas “in the mind” are what my old metaphysics professor called “abstract particulars.” Yes, they’re abstract. (That is: I know next to nothing about neuropsychology, and no doubt there are tiny bits of matter doing this and that when I think. But when I’m thinking, whatever is going on in all that complicated computer-hardware that is my brain, I am aware of such things as the idea of the number 17, and they have no obvious “location” as such. Phenomenologically speaking, they are both abstract – you certainly can’t pick them up and bounce them around – and yet particular, unique occurrences. What is true is that they often have something in common with certain goings-on in the minds of billions of others who, at one time or another, may have had occasion to entertain the idea of 17.)
Does that particular entity in my mind merit some sort of “protection”? Yes! However unoriginal my thought, you nevertheless are not entitled to just barge in and upset it without my say-so. I do own my mind. You are not welcome to use it as you please. And this is as true for morons as for geniuses.
Copyright, Kinsella notes, is “a right given to authors of “original works,” such as books, articles, movies, and computer programs. Copyright gives the exclusive right to reproduce the work, prepare derivative works, or to perform or present the work publicly. Copyrights protect only the form or expression of ideas, not the underlying ideas themselves.” (Op. Cit., 199-201). It’s not entirely clear what this means. If a certain book is copyrighted, then reproducing it in quite a different form without permission will be just as illegal as reproducing it with a copy machine, exactly as it originally was published. Copyright is the right to disallow copying in whatever way copying is possible.
Further, it must be admitted, as Kinsella implies, that those “underlying ideas” are themselves universal. Not only might someone else have written the works of Shakespeare, but it is logically possible that two different people, or a million, do so. It would be difficult to compute the likelihood of this happening, even if we aren’t dealing with monkeys and typewriters – the odds against it are roughly astronomical squared. But the point is, logic doesn’t preclude it, whereas logic, or something awfully close to it, does preclude you and I both having exclusive rights to the use of my car. If someone starts spouting Shakespearian sayings as if they were his own, the chances that he’s putting us on are around 1.0.
“The Deal” with patents and copyrights
So what about patents and copyrights, then? The Stanford Encyclopedia tells us that the idea has been around for a long time. “In the first case, Vitruvius (257–180 B.C.E.) is said to have revealed intellectual property theft during a literary contest in Alexandria. While serving as judge in the contest, Vitruvius exposed the false poets who were then tried, convicted, and disgraced for stealing the words and phrases of others.” (http://plato.stanford.edu/entries/intellectual-property/ 1.) This though all those words and phrases were written in a common vocabulary and spelling system, and any of them could conceivably have been first pronounced by someone else!
Well, it seems that a great deal hangs, here, on the distinction between logical impossibility and empirical improbability. This car and the one across the street are necessarily different. My copy of the works of Shakespeare is necessarily different from your copy, but what makes it the works of Shakespeare is, in each case, exactly the same (give or take some scholarly differences among the editors.) The possibility that what you have is actually the work of somebody else who came up with exactly the same plots, poetry, and so on, exists – but it can be discounted at a rate of, as I say, right around 100%.
There is a solution to this, of sorts. Patents are not granted forever, whereas property rights in things like land can be and often are granted indefinitely. Indeed, they are not, often, “granted” at all. The thing in question, if it previously existed, is found by someone, or bought from someone, and from then on it’s his until he sells it, or dies without leaving a will directing its further use.
How long should a patent be valid for? The probability that someone else will come up with my ingenious idea for a new mousetrap within, say, the next decade, is pretty high, given the continuing demand for such things and the continuing production of ingenious people interested in finding new ways to get rid of the critters. And the probability that someone could come up with the next pill for dealing with a certain form of cancer is also pretty high. However, that “someone” would have to provide expensive laboratory facilities and underwrite an enormous amount of research, etc. Far easier to grab the results of previous work by others!
So there’s the essential background: new ideas are new for awhile, and the ideas in the minds of thinkers-up of new-to-them ideas are just as entitled to protection as the ones who got there first. Kinsella is right that there’s no such thing as “homesteading” a Platonic Idea. And homesteading your own ideas is automatic.
Kinsella rightly points out that a copyright restricts what others may do with their property. Even if it’s your printing press and your papers, you don’t get to copy my book, if it’s copyright protected. “In this way, A’s ownership of ideal rights gives him some degree of control— ownership— over the tangible property of innumerable others.” [264-265]
Is that in itself an objection? No. My ownership of my car gives me the right that you not crash into it with yours, and that is, certainly, “some degree of control” over your property. To remind yet again: ALL rights, inherently and necessarily, restrict what others may do with themselves and, as may be, their property. Property ownership is the right to use what you have within the bounds constituted by the rights of others. So this is not an objection to make very much of as it stands.4
Kinsella on Intellectual Property
Kinsella argues against “intellectual property.” In doing so, he reviews what he takes to be the standard arguments in the field. Those supporting intellectual property he divides into “natural-rights” and “utilitarian.” In the former category he places the theory that property arises naturally as the “fruit of one’s labor” which everyone agrees we own. And so, “just as one has a right to the crops one plants, so one has a right to the ideas one generates and the art one produces.” [Tom Palmer, “Palmer, “Are Patents and Copyrights Morally Justified?” – quoted by Kinsella at 278-279] The utilitarian argument, in turn, holds that “we should choose laws and policies that maximize “wealth” or “utility.” With respect to copyright and patent, the idea is that more artistic and inventive “innovation” corresponds with, or leads to, more wealth.” [285-287]
Kinsella on Utilitarianism
Kinsella criticizes utilitarianism in the standard way: how do we know that the general happiness wouldn’t be increased by taking the wealth of the top 1% and redistributing it to the bottom 99%? Well, wouldn’t it? [Note: we don’t know, of course. We “know” extremely little about that sort of thing. Nevertheless, let’s sympathize with the point that stealing people’s property, if it could be shown to lead to greater overall wealth or happiness, would be justified by utilitarianism. Trouble is (a) it’s all but impossible to show that, and (b) the question is whether that shows anything about IP. Answer: it does not. No one else’s property is stolen and redistributed by my copyright in a book that I wrote. Kinsella also mentions a couple of other things in the same category: whatever they may say about general utilitarianism, they don’t scratch IP rights. The argument that IP makes society in general better off by enabling authors to rely on getting the marketable returns on their own work may be wrong, but it’s hardly silly. This is especially so in view of the fact that any author who didn’t agree with that, and who is all ready to allow sundry others to copy his or her work, is welcome to do so. (And some are not. Consider the sad story of Edwin Armstrong, the inventor of the basic designs for radio and TV. He committed suicide in the aftermath of court battles for his rights as an inventor.)
As a matter of fact, I suspect that most academics are like me: we’d much rather that other intelligent beings read our stuff than that we – and especially, our publishers – get paid for it. Sales of my books are icing on cake – the cake itself is other people becoming acquainted with, and hopefully benefiting from, my work. More of that below.
Kinsella also points out that “Perhaps there would even be more innovation if there were no patent laws; maybe more money for research and development (R& D) would be available if it were not being spent on patents and lawsuits.” [315-316] I’m inclined to agree with that. Anyone who has read Dickens’ Bleak House will be aware of the looming problem. So let’s hang on with this one.
Finally, he says, “Utilitarian analysis is thoroughly confused and bankrupt: talk about increasing the size of the pie is methodologically flawed; there is no clear evidence that the pie increases with IP rights. Further, pie growth does not justify the use of force against the otherwise legitimate property of others.” [328-330] Note that this last is, as it stands, question-begging. IP looks as though it justifies restrictions on certain activities of others because authors own their productions. Consequently, the force used against, say, underground presses who publish works without authors’ consent, is justified because those presses do not exemplify “otherwise legitimate” property right uses. That force is not necessarily justified in bringing about net increases in public utility sounds plausible; that it is not justified in stopping people from stealing my writings does not.
“Deontology and Consequentialism” – One of the profession’s major, but bogus distinctions
At this point, we should go back to technicalia for a moment. The grand distinction in ethic books is between “consequentialism” and “deontology.” But the distinction is utterly nonsensical. Everything we do has consequences, and some of them matter: for example, if I murder you, the consequence that you end up dead is hardly beside the point. But utilitarianism is a very specialized view about which consequences count and how. It says that however produced, we are to “weigh” all consequences on the basis of “quantity of utility” and pick the overall configuration that literally maximizes that quantity. That’s a very far cry from the perfectly sane view that murder is wrong because it brings about somebody’s death. The question here is whether the “consequence” of protecting people’s rights over the reproduction of their own stuff, namely that ( if it works) they are thus protected, and as a result able to realize the benefits, specifically the profits, made possible by that reproduction, is a consequence we should be able to appeal to in support of doing that. And surely it is, utilitarianism in general be damned.
Kinsella on Natural Rights
Turning to “the” Natural Rights view, Kinsella begins, very aptly, by citing Ayn Rand who says that Ip rights are ““the legal implementation of the base of all property rights: a man’s right to the product of his mind.” [332-333] Kinsella points out, however, that the products of our minds are incredibly numerous and various. Do we really want “every single useful idea one comes up with” to be subject to ownership? (We touched on that several pages back. Answer: yes, but it’s usually a hill of beans at best.)
Kinsella then argues that “… the distinction between the protectable and the unprotectable is necessarily arbitrary.”  Well, that’s a mighty quick step. Why does it have to be “arbitrary”? And just how arbitrary and how arbitrary is too arbitrary? We draw the voting age and the drinking age at, say, 18 years of age. Why not 18 years and three days? Or 17? — Or 45? I don’t think very many people would find it arbitrary to make it the latter number, whereas we’d all have to agree that exactly 18 is so. But – so what? In the case of copyrights and patents, we would need to find reasons to draw the lines at certain ballpark figures.
Kinsella suggests that “For example, philosophical or mathematical or scientific truths cannot be protected under current law on the grounds that commerce and social intercourse would grind to a halt were every new phrase, philosophical truth, and the like considered the exclusive property of its creator. [338-340] But there is, I think, confusion here. Just how and why and how much is, indeed, the main reason for this essay. So, more of this below. For the present, let’s just be wary of such pronouncements in this context. We’ll only pause to note that if we’re having a seminar and you make a point, and I then make the same point in the same way as if I had just thought of it, everyone present would think that I have done something like “violating your rights”. But they’re small, in this case, and most. They might not have been, though, and in such cases I may be justified in suing you for six hundred million dollars. There’s need, then, for discrimination, and crucially, for somehow figuring out the principles that will guide us in the right direction.
Kinsella also takes up another rather important if somewhat peripheral issue: You can patent an invention, but you can’t patent a theory. If you are the first to discover the Einsteinian laws, you can’t patent E = MC2 Should anyone who subsequently cites Einstein’s law have to pay him a fee for the privilege? Why not? If the problem is that scientific activity would “grind to a halt”, that sounds like a consequence to pay attention to, does it not? We might note that even though Einstein couldn’t patent his discovery, he did manage to draw a very high salary from Princeton University for his lucubrations. That too should give us some pause.
Kinsella draws some pretty impressive inferences from the idea that people have a right to their ideas. “No one would be able to manufacture— or even use— a light bulb without getting permission from Edison’s heirs. No one would even be able to build a house without getting permission from the heirs of the first protohuman who left the caves and built a hut.” [85-387] But wait a minute! Edison did sell production rights to his Edison General Electric company, for example. Why would he have to be legally restricted to giving all his patents to his heirs? They might be worth a lot in the hands of somebody (like G.E.) who could put them to use. In fact, Edison did become a multi-millionaire for his trouble. And the rest of us benefited hugely from his work. [In fact, his story is quite complicated. Putting his light bulb to use required generators, and various other things – and buckets of capital, supplied by J. P. Morgan. And Edison ran afoul of D.C. current – A.C. was promoted by Westinghouse, and later Westinghouse and G. E. merged, minus Edison’s name. We don’t invent in a vacuum.]
Creation and Scarcity
Kinsella argues that Natural Rights arguments run afoul of the distinction between creation as the source of rights, and scarcity. We are not rewarded for our creations as such, but rather for their coming at the right time – before others have thought to the same effect, and when demand for the products of one’s creation is high. What gives the acquirer of land his property right in it is not his stepping on it, but his doing so first, and doing so in circumstances where others might be interested in using it, so that you have a need of protection against others. Without scarcity, this would make no sense. True. And since this is so, we also need to be able to be sure where your property ends and mine begins. “Thus, property rights must have objective, discernible borders, and must be allocated in accordance with the first-occupier homesteading rule. [431-432] “Creation itself is neither necessary nor sufficient to gain rights in unowned resources.” [511-512]
We must query two things here.
- One concerns “borders.” Just what constitutes
a “border”? With homesteading itself, as Kinsella must have well known, the borders are to some extent arbitrarily defined. Do I walk around the perimeter of my first-occupied plot? Nature doesn’t come in plots, and if the guy over the hill and I each walk our perimeters, chances are there’ll be overlaps and gaps, which need to be awarded by a procedure of arbitration. When we turn to non-material things, the situation is similar. Einstein’s theories are about some things and not others. The domain of his theory is reasonably well defined: for optics we need other equations, and for the kinetic theory of heat, still others. But the boundaries between other theories would be much less obvious. Is there a clear boundary between economics and political science?
We do not need “objective, discernible borders” in the literal sense of lines on lawns, and such; we do need precise definitions (sometimes), and fine distinctions. The short of this is that Property does not consist in a bunch of material objects.
- The second concerns creation. Kinsella asserts
that “The problem with IP rights is that the ideal objects protected by IP rights are not scarce; and, further, that such property rights are not, and cannot be, allocated in accordance with the first-occupier homesteading rule” [433-434] But creation is “occupancy”: an idea pops up in Smith’s head. For the time being, it’s not in anybody else’s, and he was, as far as we know, the first to have it. Einstein was the first to discover General Relativity. And so with a great many theories. Pareto optimality, the Fahrenheit system, and any number of other bits of scientific knowledge are associated with people who were the first to discover them. It looks as though the basis for “first occupation” is there – why not?
On the other hand, there are things you can do with familiar objects that become people’s property, and the point of property rights is to enable owners to do those things without molestation. Is anything analogously true of information, such as about better mousetraps – or theories? Well, in the former case, certainly. In the latter, less obviously. And yet, of course, people can use theories too. So if they don’t already know them, they might be ready to pay something for the information. The plot seems to thicken a little.
Kinsella goes on to argue, quoting two other authors, that the scarcities relevant to patents and copyrights are created rather than natural.: “Scarcity is natural when it is possible to conceive of it before any human, institutional, contractual arrangement. Artificial scarcity, on the other hand, is the outcome of such arrangements. Artificial scarcity can hardly serve as a justification for the legal framework that causes that scarcity. Such an argument would be completely circular. On the contrary, artificial scarcity itself needs a justification.” [quoted from Bouckaert, 458-459]
Of course the scarcity created by patents needs a justification. But perhaps it has one. In fact, it may be related to a more nearly natural scarcity. The idea of patents is to give an incentive to would-be creators of useful things. If they knew that they would immediately be deprived of the benefits of their labors, why would they labor? Suppose that reasoning is sound. Then there would be a scarcity, all right. But the scarcity is created by the plagiarists and the robbers of ideas whose uninhibited thefts would remove incentives to creation, and so the creation itself. If we are to have better mousetraps, we need to be sure that better-mousetrap creation will pay. Why not?
Kinsella goes on to say that “Only tangible, scarce resources are the possible object of interpersonal conflict, so it is only for them that property rules are applicable.” 
If by ‘tangible’ he means ‘material’, it simply isn’t true. Beethoven’s Fifth Symphony isn’t a tangible resource, but interpersonal conflict about it is perfectly possible, should there be some fraudulent composer who could claim it as his own, or some pirate who could peddle it and get the profits for himself.
Summing up so far
The two subjects of creation and scarcity are, as we see, connected. While what is created is not “scarce” in the sense that if Jones has it, then Smith does not; but if creations are not scarce, goodness know that creators are. A Beethoven doesn’t come along every day, nor an Einstein, nor an Edison. And while scarcities create occasions for possible rivalry needing solutions, we must ask Kinsella why this particular solution – first occupancy – is the right choice of solution. It is, indeed: I’m certainly not quarreling with him there. But why is it?
Back to First Occupancy
The answer is important. It is, as I have already suggested, because in the case of scarce goods, to deprive the first-comer or the first-creator of the fruits of his discovery is, in the well-chosen words of Hobbes, to “invade and despoil.” Invasion and despoliation are acts of war, not of peace. They motivate the victim to fight back – which she sometimes can and sometimes can’t, but the realization that she may not be able to on her own motivates her to seek out fellows defenders, and then you do have something more like war in the usual sense, and ultimately you have war in the full sense, with all its horrors and (other) costs. (Kinsella says, “A late-comer who seizes control of all or part of such owned property is simply a thief, because the property is already owned. The thief effectively proposes a new and arbitrary homesteading rule to replace the first-occupier rule, namely, the particularistic rule “I become the owner of property when I forcibly take it from you.” Of course, such a rule is no rule at all, and is clearly inferior to the first-possessor rule.” (547-550)) No quarrel there!
But of course, when he says that it’s “clearly inferior,” it’s possible to think, if we take the point of view of the invader, that the “rule” isn’t “inferior.” But that would be wrong too. What’s true is that it “to each what he can grab and keep!” not a rule – literally, not something that controls our behavior. Instead, it simply unleashes the very things we wanted a rule for in the first place. Hobbes’ word ‘war’ is helpful here because that’s what refusal to accept genuine rules really does lead to.
Homesteading and Creating
And in fact, first-coming is creation. When I stumble upon something that I can use, I need the information that this stuff is usable. Those are ideas. They may not be original, true. But on the other hand, applying that idea to this item is original: in stumbling upon it, I also “thought of it” and as a practical fact, did so first. To discover a usable thing is to create: it is, by an application of energies both physical and mental, to create an occasion for human use of something. We don’t “create” land, but we do create its usability. If we don’t, it isn’t ours. If nobody does, then it isn’t anybody’s. Just walking across a bit of land, without claiming it, without entertaining any idea that it might be useful, gets you nowhere. So I think we must say that Kinsella is wrong here. Creation is necessary for ownership – that is, for gaining rights in hitherto unowned resources, be they material resources or not.
More on Property
So it seems that “creation” is necessary. But is it sufficient? Here we must tread carefully, and we must hearken back, once again, to our distinction between particulars and universals – between individual entities (abstract or concrete) and Platonic Ideas.
Kinsella uses as an example of creation, the making of a sword or statue. To do this, I have to have some steel or a block of stone out of which to make these artefacts. He says, “I do not need to rely on the fact of creation to own the sword, but only on my ownership of the factors used to make the sword. [499-500] But this won’t get us to symphonies or, say, poems memorized instead of written down. And if Beethoven had composed the 5th symphony on purloined paper, would we say that it wasn’t his? I rather doubt it! He would owe compensation to the provider of the paper, perhaps. But the symphony? No: it’s Beethoven’s, of course, and it is his as having come from the mind of Beethoven rather than someone else.
“Creation itself is neither necessary nor sufficient to gain rights in unowned resources. Further, there is no need to maintain the strange view that one “owns” one’s labor in order to own things one first occupies. Labor is a type of action, and action is not ownable; rather, it is the way that some tangible things (e.g., bodies) act in the world.” [512-514]
I think this is compeltely wrong; and it serves to bring us, to the crucial point of the matter. Locke pronounced the familiar argument that we own ourselves, and therefore our labor, and therefore the things that we put our labor into. He was partly wrong here for Kinsellian reasons: you could work to no avail on raw materials that were not your own. It’s easy to waste your labor. Pouring your tomato juice into the sea, you don’t come to possess the sea – you just “foolishly waste your tomato juice,” as Robert Nozick so delightfully puts it.5 And yet, the Beethoven example will surely do to cast doubt on the point. There are indeed products of the mind that are not essentially physical. Should we say that you “own” them? Or should we follow Kinsella in asserting self-ownership to be “strange”?
To answer this, we need to go back to the original question – just what is property? Many writers, of whom Kinsella is evidently one, think that property is a relation between just two things: an owner and the thing owned. And of course, it is partly that. But that is definitely not all there is to it. To stop at two terms is not to analyze ownership, but a different and more primitive idea, namely possession. The potato is in my hands: I possess it. Good enough – but not good enough to constitute ownership.
The difference, as I said at the outset, is that ownership is a normative notion. To say that you “own” x is to say that others may not prevent you from using, doing things with, x. So long as we leave others out of it, we don’t yet have a recognizable concept of ownership – of course. For that concept entails duties on the part of others. Leave those others out and you lose your grip on ownership. So the question of the “origin” of property, that is, the justification of ascribing property rights to anyone, is the question of whether there is good interpersonally recognizable reason to exclude persons other than the putative owner from using the thing owned. If we do so ascribe ownership, then the owner may forbid others’ use: they have to get clearance from the owner first.
Goods and Services
If we ask, what reasons are there for upholding such a system, then Kinsella’s answer – to prevent conflict – is a good start. But it isn’t enough of a reason to limit property to material objects. Indeed, property doesn’t necessarily have anything to do with material objects as such. What we buy when we buy things, actually, are, not goods, but services. I want, let us suppose, a certain piece of land. What are my options? Force, fraud, and chicanery are and ought to be ruled out – unless, of course, I turn to Government, in which case there’s no telling… In consequence, there is but one practicable way: make an offer to the current owner. If she won’t sell, raise the offer. And if she still won’t sell? Rethink my plans, goals, and strategies. The current owner would be doing me a service: viz., enabling me to do whatever it is I wanted to do with that bit of land. It is a service because it benefits me. The person who can perform that service, in consequence, is its owner.
We talk of buying goods and services, but that is, in a way, misleading. For whatever we buy, what we pay someone for is a service, even if, quite often, the service consists in unblocking our way to the possession of some thing, by relinquishing a previously held right to it.
The one social institution that affords a peaceable way to getting these services performed is the free market. There, services are performed because the price is right, and all prices are volunteered by someone hoping thereby to better his situation.
Bearing that in mind, lets turn to the services performed by authors, composers, and inventors. They seek fame and fortune, or sometimes philanthropic benefit to the public for its own sake – each in very varying proportions. Many authors and artists will give away their productions, eliminating the barrier to their perusing or viewing that would be constituted by their refusal to let others see without paying an admission price. Some will not, or would rather not.
An important feature of these intended prohibitions is that, once breached, the floodwaters proceed apace. If I let Jones have a copy of my work, and he has a copy machine, or more likely a scanner and an e-mail or one of the social network facilities, then it is not long before the world has it or at least can have it. If I had a right that people not do this, how is it to be enforced? Who pays for enforcing my rights? That is very, very tricky, and as the progress of the internet proceeds apace, it is getting trickier all the time. Somebody somewhere in Siberia or Lahore or goodness knows where may be observing me as I write these very words, right now. Scary! – and very, very hard to defend ourselves against.
For that matter, material objects, at various times and places, are also pretty hard to defend. The most impregnable fortress that humans have ever been able to construct is no match for a well-aimed nuclear missile. We have to live with that (and do). We’ll have to live with computer hackers too, somehow.
Administrative Costs of Defense: who pays?
- a point about negative rights
But that doesn’t answer the question, Who pays for the defenses due to our rights?
At this point, we recall another thing: fundamental rights are negative. They are rights that others keep off. But they are not rights that other people owe me any positive services, including protection.
Misguided philosophers in recent times have tried to sweep this important distinction under the carpet. Most notoriously, Stephen Holmes and Cass Sunstein authored a book which they entitled The Cost of Rights – Why Liberty Depends on Taxes (Norton, 1999).To some of us, them’s fightin’ words! – since we think, with extremely good reason, that taxes are the enemy of liberty. What’s going on here? The answer is that as a point of logic, they’re simply wrong. Obviously you can have rights that don’t manage to get protected, just as it is obvious (or should be) that persons setting out to protect rights might instead violate them (and that governments very often do.)
Is Government the Solution?
But it’s also obvious that to maintain any rights, whether negative or positive, may require action on someone’s part. As soon as there are invaders and despoilers, there is a practical need for defense. This doesn’t mean that you don’t even have those rights unless you defend them – let alone, unless some government defends them. But it does mean that you might as well not have them if people are going to make free to invade you when and as they feel like it. So there is a practical problem, and among its proposed solutions, of course, is Government. But on Lord Acton’s well-know principal, that All Power Corrupts, the cost of government is huge, and almost always much greater than the value of the services they claim to be providing.
Now, ideally the answer to our question is: the Culprit Pays. If you own x and person B steals x, then if it cost you $N to track down B and demonstrate his guilt, then B owes you the $N plus whatever ill-gotten gains he may have from stealing x. Needless to say, this is sometimes impossible, though at other times quite possible. When it isn’t, what do we do? Especially, do we make the public pay? Why? It wasn’t their fault , after all!
However, we might argue that we all, the entire public, has a stake in this, for without innovation we get nowhere. If innovation requires protected patents and copyrights, then we all have an interest and should contribute to this common interest.
This is a good argument if we can confirm all the premises. But, can we? If Kinsella’s conjecture is true, that we would have just as much or even more innovation without granting strong rights to innovators, then those premises are not confirmed. And it seems to me that the evidence doesn’t point clearly in one direction here.
Practical Problems and Partial Solutions
All of which brings us back to patents and copyrights. How long, if at all, do we protect original practical ideas and artistic, literary, or musical creations? Here we have to distinguish theory and practice. In theory, we are defending the creator – the inventor, composer, whatever. This brings up two important points.
First, of course, is: which creator? Kinsella is right to say that we currently protect first creators at the expense of second ones. I agree with him that this is wrong in principle. My entitlement to my use of me is not contingent on my being the first to have my particular complex of talents. It is merely contingent on their being mine. If you thought of it first fine. But if I thought of it second, and I didn’t get it from you, then I have not proceeded at your expense. You are not entitled to that sort of protection. Indeed, that is protecting you by attacking me. No good!
Second: in practice, nowadays and hereabouts, what we are protecting is mostly the publisher. Typically, nowadays, an academic author signs his own individual rights to the reproduction of his work over to the publisher, who can then punish the author himself for circulating copies to friends and professional colleagues. That’s something we’d better bear in mind when we go so far as to make laws in this area.
Copyright and Contract
Kinsella argues that the most that an individual creator of a reproducible idea can legitimately do is impose on those to whom he conveys it an iterative obligation not to impart it to further others without the creator’s permission. But if he doesn’t have the means to impose penalties on those who break that obligation, he’s in trouble. When patent and copyright laws come along and forbid everyone to reproduce that idea, even those who independently and elsewhere think it up on their own, we now have the problem with government once again: government defends the innocent by punishing other innocents.
Kinsella, commenting on the proposal that a creator can enter into contracts with reproducers that bind them not to hand on those materials to further reproducers, says, “But the advocates of the contractual approach to IP are mistaken if they believe that private contract can be used to recreate the same type of protection afforded by modern IP rights. Patent and copyright are good against all third parties, regardless of their consent to a contract. They are real rights that bind everyone, in the same way that my title to a parcel of land binds everyone to respect my property— even if they do not have a contract with me. A contract, by contrast, binds only parties to the contract. It is like private law between the parties. It does not bind third parties, i.e., those not in “privity” with the original parties.” [583-588]
Note that a contract can impose an obligation only if what is transferred to the second party is something that the first party is already entitled to. Thus, there is (and must be) a “real” antecedent right that does (morally) bind everyone just as much as A’s first-occupancy of land “binds” everyone to respect its boundaries. When Kinsella says that a contract binds only parties to that contract, is he denying this? Contracts would be impossible and pointless if he is. Our question here is not whether everyone has an obligation, but what to do about those who flout it. It’s a question of administration, and, as noted, a tough one.
The Social Contract
We could also say, as I am (and many are) inclined to, that the whole edifice of morality is contractual, and that among the terms of the social contract are acceptance of property rights. Abstractly, I think that’s exactly right. But we then continue to have this same administrative problem: what do you do about violators? What may you do? In a sense noncompliers are at war with compliers, and thus there are no rules, hence no prohibitions of anything that compliers may do to punish or otherwise control noncompliers. Where this gets you depends on how effective your police, soldiers, or whatever, manage to be in practice.
Meanwhile, though, there is the original question of just precisely what rights in creations to recognize and how, in the “social contract”? Here is where there are things to be said, going rather beyond what Kinsella says. For example, as in Renaissance practice, “The U.S. Patent Act requires usefulness, novelty, and non-obviousness of the subject matter.”6
You don’t protect what is completely useless; you don’t protect what is not new; and you don’t protect Jones from Smith by disallowing Smith from doing what he would do anyway.
Knowing what he might or would do is an empirical matter, and important. After all, the only thing we may properly protect from is theft. Second-comers who create, like Leibniz, are not copying, plagiarizing, or stealing anybody else’s stuff. They should not be punished for making use of it.
This Modern Age
In the age of Google, where the costs of reproduction hover near the zero-mark, the question of how creators are to be somehow rewarded for their activity is crucial. An easy partial answer is that we should all give credit where it is due: if we knew that Jones thought it up, and that’s why we have it, then we can point this out, for all to recognize. But beyond that? If the cost of finding that out is effectively zero by now, why should we have to pay some large publishing company a hefty fee for reproducing it?
In very recent times, of course, the free market has swung into action in a gratifyingly big way: you can publish it yourself, bypassing those big companies. Thousands of people are now doing just that. Thousands more are publishing material on the internet and giving it away for free, for all to read or view as they will.
Part of the solution for the internet age lies in making it very easy for people to pay small amounts for viewing interesting material. We currently can download many books for appreciably less than their hard-copy originals – indeed, that’s how I got Kinsella’s book! If the authors were able to provide a tab such that if you click it just once, you have thereby paid him a dime, with no transactions costs, how many readers wouldn’t click it? If it were very easy to make it a condition for viewing that you click that tab, so that it would be a lot of work for a hacker to get the material without paying, I expect that just about everyone would pay. So one of our conclusions here is: OK, somebody – get to work on it. We note too that a danger is that someone will invent a way of getting the fees down to about 50¢ per transaction, so paying your dime to the author would cost you sixty cents; and the government (of course) would require using that process, thus once again siphoning coerced money into the hands of large companies instead of the people it’s supposed to “protect.”
Technology über alles!
Technology is what got us where we are, and I have no doubt that it will get us much farther in this particular area. All I have tried to do here is to respond to a very challenging, interesting, and readable critique at the level of principle against copyrights and patents. I agree with the author that at the least, most patents today are inappropriate, and most copyright legislation is somewhere between ill-considered and outrageous. But that doesn’t impugn the principles behind it. I try, instead, to help set them in their place.
Waterloo, Ontario – April 1, 2013
Note: I am most grateful for Stephan Kinsella’s thoughtful and stimulating book on this issue, without which my perception of the issues would, I am sure, have been much dimmer.
- Stephan Kinsella, Against Intellectual Property (Copyright © 2008 Ludwig von Mises Institute Auburn, Alabama) All otherwise unattributed numerals in parentheses in my discussion are to the Kindle numbers in his text, which remain unique however you set up your download. [↩]
- See the Wikipedia entry, http://en.wikipedia.org/wiki/Leibniz_and_Newton_calculus_controversy. [↩]
- Hume, Enquiry into the Principles of Morals, Ch. III, Part I. [↩]
- Marxist and other “radical” writers do try to make much of it. G. A. Cohen, notably, kept insisting that J. P. Morgan’s property right in his yacht excludes me from using it as I please. They talk as though this were a damning new point about bourgeois morality. It’s actually a sheer matter of definition. [↩]
- Robert Nozick, Anarchy, State, and Utopia 182. [↩]
- http://plato.stanford.edu/entries/intellectual-property/#HisIntPro sect 2.3. [↩]